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HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUSand GUIDELINES ON INTERNATIONAL PROTECTION

UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES

REISSUEDGENEVA, FEBRUARY 2019

HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS AND GUIDELINES ON INTERNATIONAL PROTECTIONUNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES

REISSUED GENEVA, FEBRUARY 2019

HCR/1P/4/ENG/REV. 4

© 2019 UNHCR.All rights reserved for all countries. UNHCR 1979.

CONTENTS Paragraphs Page

Foreword ....................................................................................................................................... 9

HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS

Introduction – International instruments defining the term “refugee” ........................... 1‑27 13

A. Early instruments (1921‑1946) ........................................................................................... 1‑4 13

B. 1951 Convention relating to the Status of Refugees .................................................... 5 13

C. Protocol relating to the Status of Refugees ..................................................................... 6‑11 13

D. Main provisions of the 1951 Convention and the 1967 Protocol .............................. 12 14

E. Statute of the Office of the United Nations High Commissioner for Refugees .......... 13‑19 14

F. Regional instruments relating to refugees ........................................................................ 20‑23 15

G. Asylum and the treatment of refugees ............................................................................. 24‑27 15

PART ONE

Criteria for the Determination of Refugee Status ............................................................... 28‑188 17

Chapter I – General Principles ................................................................................................. 28‑31 17

Chapter II – Inclusion Clauses .................................................................................................. 32‑110 18

A. Definitions ............................................................................................................................... 32‑34 18

(1) Statutory Refugees ....................................................................................................... 32‑33 18

(2) General definition in the 1951 Convention ............................................................ 34 18

B. Interpretation of terms ......................................................................................................... 35‑110 18

(1) “Events occurring before 1 January 1951” .............................................................. 35‑36 18

(2) “well founded fear of being persecuted” ................................................................. 37‑65 19

(a) General analysis ..................................................................................................... 37‑50 19

(b) Persecution ............................................................................................................. 51‑53 21

(c) Discrimination ........................................................................................................ 54‑55 21

(d) Punishment ............................................................................................................. 56‑60 21

(e) Consequences of unlawful departure or unauthorized stay outside country of origin .................................................................................. 61 22

(f) Economic migrants distinguished from refugees ............................................ 62‑64 22

(g) Agents of persecution .......................................................................................... 65 22

(3) “for reasons of race, religion, nationality, membership of a particular social group or political opinion” .......................................................... 66‑86 23


(b) Race .......................................................................................................................... 68‑70 23

(c) Religion ..................................................................................................................... 71‑73 23

(d) Nationality .............................................................................................................. 74‑76 24

(e) Membership of a particular social group .......................................................... 77‑79 24

(f) Political opinion ...................................................................................................... 80‑86 24

(4) “is outside the country of his nationality” ................................................................ 87‑96 25


(b) Refugees “sur place” .............................................................................................. 94‑96 26

(5) “and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country” .................................................................... 97‑100 26

(6) “or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it” ......................................... 101‑105 27

(7) Dual or multiple nationality ........................................................................................ 106‑107 27

(8) Geographical scope ...................................................................................................... 108‑110 28

Chapter III – Cessation Clauses ............................................................................................... 111‑139 29

A. General ..................................................................................................................................... 111‑117 29


(1) Voluntary re‑availment of national protection ....................................................... 118‑125 30

(2) Voluntary re‑acquisition of nationality ..................................................................... 126‑128 31

(3) Acquisition of a new nationality and protection .................................................... 129‑132 31

(4) Voluntary re‑establishment in the country where persecution was feared ........... 133‑134 32

(5) Nationals whose reasons for becoming a refugee have ceased to exist .......... 135‑136 32

(6) Stateless persons whose reasons for becoming a refugee have ceased to exist ........................................................................................................... 137‑139 33

Chapter IV – Exclusion Clauses ............................................................................................... 140‑163 34

A. General ..................................................................................................................................... 140‑141 34


(1) Persons already receiving United Nations protection or assistance ................. 142‑143 34

(2) Persons not considered to be in need of international protection .................... 144‑146 34

(3) Persons considered not to be deserving of international protection ................ 147‑163 35

Paragraphs Page

(a) War crimes, etc. ..................................................................................................... 150 35

(b) Common crimes ..................................................................................................... 151‑161 36

(c) Acts contrary to the purposes and principles of the United Nations ........ 162‑163 37

Chapter V – Special Cases ........................................................................................................ 164‑180 38

A. War refugees ........................................................................................................................... 164‑166 38

B. Deserters and persons avoiding military service ............................................................ 167‑174 38

C. Persons having resorted to force or committed acts of violence ................................ 175‑180 39

Chapter VI – The Principle Of Family Unity .......................................................................... 181‑188 41

PART TWO

Procedures for the Determination of Refugee Status ........................................................ 189‑219 42

A. General ..................................................................................................................................... 189‑194 42

B. Establishing the Facts ............................................................................................................ 195‑205 43

(1) Principles and methods ................................................................................................ 195‑202 43

(2) Benefit of the doubt ..................................................................................................... 203‑204 44

(3) Summary ......................................................................................................................... 205 44

C. Cases Giving Rise to Special Problems in Establishing the Facts ................................ 206‑219 45

(1) Mentally disturbed persons ........................................................................................ 206‑212 45

(2) Unaccompanied minors ............................................................................................... 213‑219 46

Conclusion .................................................................................................................................... 220‑223 47

ANNEXES

Annex I – Excerpt from the Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons .......................... 48

Annex II – 1951 Convention Relating to the Status of Refugees .................................... 50

Annex III – 1967 Protocol Relating to the Status of Refugees ......................................... 66

Annex IV – List of States Parties To The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol .............................................................. 70

Annex V – Excerpt From the Charter of the International Military Tribunal ................. 74

Annex VI – International Instruments Relating to Article 1 F(a) of the 1951 Convention ............................................................................................................ 75

Annex VII – Statute of the Office of the United Nations High Commissioner for Refugees ...................................................................................................... 76

Paragraphs Page

GUIDELINES ON INTERNATIONAL PROTECTION

GUIDELINES ON INTERNATIONAL PROTECTION NO. 1: Gender‑Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees ..................................................................................................................... 83

GUIDELINES ON INTERNATIONAL PROTECTION NO. 2: “Membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees ......................................................................................... 93

GUIDELINES ON INTERNATIONAL PROTECTION NO. 3: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (the “Ceased Circumstances” Clauses) ...................................................................................................................................... 99

GUIDELINES ON INTERNATIONAL PROTECTION NO. 4: “Internal Flight or Relocation Alternative” within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees ..................................................................................................107

GUIDELINES ON INTERNATIONAL PROTECTION NO. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees ..................................115

GUIDELINES ON INTERNATIONAL PROTECTION NO. 6: Religion‑Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees ....123

GUIDELINES ON INTERNATIONAL PROTECTION NO. 7: The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked ..................................................................................133

GUIDELINES ON INTERNATIONAL PROTECTION NO. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees ......... 145

GUIDELINES ON INTERNATIONAL PROTECTION NO. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees ......................165

GUIDELINES ON INTERNATIONAL PROTECTION NO. 10: Claims to Refugee Status related to Military Service within the context of Article 1A (2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees ..................................................................185

GUIDELINES ON INTERNATIONAL PROTECTION NO. 11: Prima Facie Recognition of Refugee Status .........................................................................................................................203

GUIDELINES ON INTERNATIONAL PROTECTION NO. 12: Claims for refugee status related to situations of armed conflict and violence under Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees and the regional refugee definitions ....................215

GUIDELINES ON INTERNATIONAL PROTECTION No. 13: Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees .........................239

INDEX ................................................................................................................................. 253

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FOREWORD

For over 65 years, the 1951 Convention relating to the Status of Refugees (1951 Convention), com‑plemented by its 1967 Protocol, has served as the foundation of the refugee protection regime. It provides a universal code for the treatment of refugees uprooted from their countries as a result of persecution, including serious human rights violations or other forms of serious harm, as well as in the context of violence or armed conflict. Its key elements include: a definition of the term refugee (with provisions for inclusion, exclusion and cessation); a guarantee of protection against refoulement; and a set of minimum civil, political, economic, social and cultural rights. Complemented by the General Assembly resolution which created UNHCR, and made it functionally responsible for providing inter‑national protection and seeking durable solutions for refugees, as well as regional instruments such as the 1969 OAU Convention governing Specific Aspects of Refugee Problems in Africa, the 1984 Cart‑agena Declaration on Refugees and the Common European Asylum System, the 1951 Convention and its 1967 Protocol have been lifesaving instruments for some of the world’s most vulnerable people.

The centrality of the 1951 Convention and its 1967 Protocol to the refugee protection regime is reinforced in two seminal texts: the 2016 New York Declaration for Refugees and Migrants, and the Global Compact on Refugees, affirmed by the General Assembly in 2018. These offer a meaningful set of common undertakings that have the potential to make a real difference in the lives of refugees and their host communities; notably, in the case of the Compact, by building on and complementing the 1951 Convention and relevant regional instruments through the establishment of more predictable and equitable responsibility‑sharing arrangements with countries hosting large numbers of refugees. Creating an architecture of support for the countries most affected is fundamental to improvements in refugee protection and assistance, and a stronger focus on solutions from the outset.

The “Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status” (the Handbook) is issued in accordance with UNHCR’s supervisory responsibility under its Statute, the 1951 Convention, its 1967 Protocol and regional instruments. It is intended to guide government officials, judges, practitioners, as well as UNHCR colleagues in applying the refugee definition. The Handbook was first issued in September 1979 at the request of Member States of the Executive Committee of the High Commissioner’s Programme. A second edition was released in January 1992, which updated information concerning States Parties to the 1951 Convention and 1967 Protocol, and a third edition was issued in December 2011 on the occasion of the 60th anniversary of the 1951 Convention.

The 1951 Convention has proven to be a living and dynamic instrument, and its interpretation and ap‑plication has continued to evolve through State practice, UNHCR Executive Committee conclusions, academic literature and judicial decisions at national, regional and international levels. To capture this evolution and in line with its mandate, UNHCR has issued a series of legal positions on specific questions of international refugee law entitled “Guidelines on International Protection”.1 Included in this edition are the thirteen Guidelines developed by the Office between 2002 and 2017. They com‑plement and update the Handbook and should be read in combination with it. Amongst other issues, they illustrate the potential of the 1951 Convention, together with regional instruments, to ensure international protection for persons fleeing a wide range of socio‑political events, including:

1 See Goal 1, para 6, second point of the Agenda for Protection, endorsed by the Executive Committee of UNHCR’s Programme and welcomed by the General Assembly: UN High Commissioner for Refugees (UNHCR), Agenda for Protection, October 2003, Third edition, available at: https://www.refworld.org/docid/4714a1bf2.htm

https://www.refworld.org/docid/4714a1bf2.htm

https://www.refworld.org/docid/4714a1bf2.htm

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• armed conflict, which is often rooted in and/or conducted along lines of real or perceived racial, ethnic, religious, political, gender or social group divides (Guidelines on International Protection No. 12);

• persecution on the basis of sexual orientation or gender identity (Guidelines on International Protection No. 9); and

• violence perpetrated by organized gangs, traffickers, and other non‑State actors, against which the State is unable or unwilling to protect (including Guidelines on International Protection No. 7 and No. 12).

I trust that this latest edition of the Handbook, together with the accompanying Guidelines, will con‑tinue to support the full and inclusive application of the 1951 Convention and regional refugee instru‑ments, and ensure international protection for those who need it worldwide.

Volker TürkAssistant High Commissioner for Refugees (Protection)UNHCRGeneva, January 2019

HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUSUNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES

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INTRODUCTION – INTERNATIONAL INSTRUMENTS DEFINING THE TERM “REFUGEE”

A. EARLY INSTRUMENTS (1921‑1946)

1. Early in the twentieth century, the refugee problem became the concern of the international community, which, for humanitarian reasons, began to assume responsibility for protecting and assisting refugees.

2. The pattern of international action on behalf of refugees was established by the League of Na‑tions and led to the adoption of a number of international agreements for their benefit. These instruments are referred to in Article 1 A (1) of the 1951 Convention relating to the Status of Refu‑gees (see paragraph 32 below).

3. The definitions in these instruments relate each category of refugees to their national origin, to the territory that they left and to the lack of diplomatic protection by their former home country. With this type of definition “by categories” interpretation was simple and caused no great difficulty in as‑certaining who was a refugee.

4. Although few persons covered by the terms of the early instruments are likely to request a formal determination of refugee status at the present time, such cases could occasionally arise. They are dealt with below in Chapter II, A. Persons who meet the definitions of international instruments prior to the 1951 Convention are usually referred to as “statutory refugees”.

B. 1951 CONVENTION RELATING TO THE STATUS OF REFUGEES

5. Soon after the Second World War, as the refugee problem had not been solved, the need was felt for a new international instrument to define the legal status of refugees. Instead of ad hoc agree‑ments adopted in relation to specific refugee situations, there was a call for an instrument containing a general definition of who was to be considered a refugee. The Convention relating to the Status of Refugees was adopted by a Conference of Plenipotentiaries of the United Nations on 28 July 1951, and entered into force on 21 April 1954. In the following paragraphs it is referred to as “the 1951 Convention”. (The text of the 1951 Convention will be found in Annex II.)

C. PROTOCOL RELATING TO THE STATUS OF REFUGEES

6. According to the general definition contained in the 1951 Convention, a refugee is a person who:

As a result of events occurring before 1 January 1951 and owing to well‑founded fear of being persecuted ... is outside his country of nationality ...

7. The 1951 dateline originated in the wish of Governments, at the time the Convention was adopted, to limit their obligations to refugee situations that were known to exist at that time, or to those which might subsequently arise from events that had already occurred.1

8. With the passage of time and the emergence of new refugee situations, the need was increasingly felt to make the provisions of the 1951 Convention applicable to such new refugees. As a result, a Protocol relating to the Status of Refugees was prepared. After consideration by the General Assembly of the United Nations, it was opened for accession on 31 January 1967 and entered into force on 4 October 1967.

1 The 1951 Convention also provides for the possibility of introducing a geographic limitation (see paras. 108 to 110 below).

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9. By accession to the 1967 Protocol, States undertake to apply the substantive provisions of the 1951 Convention to refugees as defined in the Convention, but without the 1951 dateline. Although related to the Convention in this way, the Protocol is an independent instrument, accession to which is not limited to States parties to the Convention.

10. In the following paragraphs, the 1967 Protocol relating to the Status of Refugees is referred to as “the 1967 Protocol”. (The text of the Protocol will be found in Annex III.)

11. At the time of writing, 78 States are parties to the 1951 Convention or to the 1967 Protocol or to both instruments. (A list of the States parties will be found in Annex IV.)

D. MAIN PROVISIONS OF THE 1951 CONVENTION AND THE 1967 PROTOCOL

12. The 1951 Convention and the 1967 Protocol contain three types of provisions:

(i) Provisions giving the basic definition of who is (and who is not) a refugee and who, having been a refugee, has ceased to be one. The discussion and interpretation of these provisions constitute the main body of the present Handbook, intended for the guidance of those whose task it is to determine refugee status.

(ii) Provisions that define the legal status of refugees and their rights and duties in their country of ref‑uge. Although these provisions have no influence on the process of determination of refugee status, the authority entrusted with this process should be aware of them, for its decision may indeed have far‑reaching effects for the individual or family concerned.

(iii) Other provisions dealing with the implementation of the instruments from the administrative and diplomatic standpoint. Article 35 of the 1951 Convention and Article 11 of the 1967 Protocol con‑tain an undertaking by Contracting States to co‑operate with the Office of the United Nations High Commissioner for Refugees in the exercise of its functions and, in particular, to facilitate its duty of supervising the application of the provisions of these instruments.

E. STATUTE OF THE OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES

13. The instruments described above under A‑C define the persons who are to be considered refu‑gees and require the parties to accord a certain status to refugees in their respective territories.

14. Pursuant to a decision of the General Assembly, the Office of the United Nations High Commis‑sioner for Refugees (“UNHCR”) was established as of 1 January 1951. The Statute of the Office is annexed to Resolution 428 (V), adopted by the General Assembly on 14 December 1950. According to the Statute, the High Commissioner is called upon – inter alia – to provide international protection, under the auspices of the United Nations, to refugees falling within the competence of his Office.

15. The Statute contains definitions of those persons to whom the High Commissioner’s competence extends, which are very close to, though not identical with, the definition contained in the 1951 Con‑vention. By virtue of these definitions the High Commissioner is competent for refugees irrespective of any dateline2 or geographic limitation.3

16. Thus, a person who meets the criteria of the UNHCR Statute qualifies for the protection of the United Nations provided by the High Commissioner, regardless of whether or not he is in a country that is a party to the 1951 Convention or the 1967 Protocol or whether or not he has been recognized

2 See paras. 35 and 36 below.3 See paras. 108 and 110 below.

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by his host country as a refugee under either of these instruments. Such refugees, being within the High Commissioner’s mandate, are usually referred to as “mandate refugees”.

17. From the foregoing, it will be seen that a person can simultaneously be both a mandate refugee and a refugee under the 1951 Convention or the 1967 Protocol. He may, however, be in a country that is not bound by either of these instruments, or he may be excluded from recognition as a Con‑vention refugee by the application of the dateline or the geographic limitation. In such cases he would still qualify for protection by the High Commissioner under the terms of the Statute.

18. The above mentioned Resolution 428 (V) and the Statute of the High Commissioner’s Office call for co‑operation between Governments and the High Commissioner’s Office in dealing with refugee problems. The High Commissioner is designated as the authority charged with providing inter‑na‑tional protection to refugees, and is required inter alia to promote the conclusion and ratification of international conventions for the protection of refugees, and to supervise their application.

19. Such co‑operation, combined with his supervisory function, forms the basis for the High Commis‑sioner’s fundamental interest in the process of determining refugee status under the 1951 Convention and the 1967 Protocol. The part played by the High Commissioner is reflected, to varying degrees, in the procedures for the determination of refugee status established by a number of Governments.

F. REGIONAL INSTRUMENTS RELATING TO REFUGEES

20. In addition to the 1951 Convention and the 1967 Protocol, and the Statute of the Office of the United Nations High Commissioner for Refugees, there are a number of regional agreements, conventions and other instruments relating to refugees, particularly in Africa, the Americas and Europe. These regional instruments deal with such matters as the granting of asylum, travel docu‑ments and travel facilities, etc. Some also contain a definition of the term “refugee”, or of persons entitled to asylum.

21. In Latin America, the problem of diplomatic and territorial asylum is dealt with in a number of regional instruments including the Treaty on International Penal Law, (Montevideo, 1889); the Agree‑ment on Extradition, (Caracas, 1911); the Convention on Asylum, (Havana, 1928); the Convention on Political Asylum, (Montevideo, 1933); the Convention on Diplomatic Asylum, (Caracas, 1954); and the Convention on Territorial Asylum, (Caracas, 1954).

22. A more recent regional instrument is the Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted by the Assembly of Heads of State and Government of the Organization of African Unity on 10 September 1969. This Convention contains a definition of the term “refugee”, consisting of two parts: the first part is identical with the definition in the 1967 Protocol (i.e. the defi‑nition in the 1951 Convention without the dateline or geographic limitation). The second part applies the term “refugee” to:

every person who, owing to external aggression, occupation, foreign domination or events seriously disturb‑ing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.

23. The present Handbook deals only with the determination of refugee status under the two interna‑tional instruments of universal scope: the 1951 Convention and the 1967 Protocol.

G. ASYLUM AND THE TREATMENT OF REFUGEES

24. The Handbook does not deal with questions closely related to the determination of refugee sta‑tus e.g. the granting of asylum to refugees or the legal treatment of refugees after they have been recognized as such.

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25. Although there are references to asylum in the Final Act of the Conference of Plenipotentiaries as well as in the Preamble to the Convention, the granting of asylum is not dealt with in the 1951 Convention or the 1967 Protocol. The High Commissioner has always pleaded for a generous asylum policy in the spirit of the Universal Declaration of Human Rights and the Declaration on Territorial Asylum, adopted by the General Assembly of the United Nations on 10 December 1948 and on 14 December 1967 respectively.

26. With respect to the treatment within the territory of States, this is regulated as regards refugees by the main provisions of the 1951 Convention and 1967 Protocol (see paragraph 12(ii) above). Fur‑thermore, attention should be drawn to Recommendation E contained in the Final Act of the Confer‑ence of Plenipotentiaries which adopted the 1951 Convention:

The Conference

Expresses the hope that the Convention relating to the Status of Refugees will have value as an example ex‑ceeding its contractual scope and that all nations will be guided by it in granting so far as possible to persons in their territory as refugees and who would not be covered by the terms of the Convention, the treatment for which it provides.

27. This recommendation enables States to solve such problems as may arise with regard to persons who are not regarded as fully satisfying the criteria of the definition of the term “refugee”.

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PART ONE CRITERIA FOR THE DETERMINATION OF REFUGEE STATUS

CHAPTER I – GENERAL PRINCIPLES28. A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized be‑cause he is a refugee.

29. Determination of refugee status is a process which takes place in two stages. Firstly, it is necessary to ascertain the relevant facts of the case. Secondly, the definitions in the 1951 Convention and the 1967 Protocol have to be applied to the facts thus ascertained.

30. The provisions of the 1951 Convention defining who is a refugee consist of three parts, which have been termed respectively “inclusion”, “cessation” and “exclusion” clauses.

31. The inclusion clauses define the criteria that a person must satisfy in order to be a refugee. They form the positive basis upon which the determination of refugee status is made. The so‑called ces‑sation and exclusion clauses have a negative significance; the former indicate the conditions under which a refugee ceases to be a refugee and the latter enumerate the circumstances in which a person is excluded from the application of the 1951 Convention although meeting the positive criteria of the inclusion clauses.

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CHAPTER II – INCLUSION CLAUSES

A. DEFINITIONS

(1) Statutory Refugees

32. Article 1 A (1) of the 1951 Convention deals with statutory refugees, i.e. persons considered to be refugees under the provisions of international instruments preceding the Convention. This provision states that:

For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who:

(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Consti‑tution of the International Refugee Organization;

Decisions of non‑eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugees being accorded to persons who fulfil the conditions of paragraph 2 of this section.

33. The above enumeration is given in order to provide a link with the past and to ensure the continu‑ity of international protection of refugees who became the concern of the international community at various earlier periods. As already indicated (para. 4 above), these instruments have by now lost much of their significance, and a discussion of them here would be of little practical value. However, a per‑son who has been considered a refugee under the terms of any of these instruments is automatically a refugee under the 1951 Convention. Thus, a holder of a so‑called “Nansen Passport” 4 or a “Certificate of Eligibility” issued by the International Refugee Organization must be considered a refugee under the 1951 Convention unless one of the cessation clauses has become applicable to his case or he is excluded from the application of the Convention by one of the exclusion clauses. This also applies to a surviving child of a statutory refugee.

(2) General definition in the 1951 Convention

34. According to Article 1 A (2) of the 1951 Convention the term “refugee” shall apply to any person who:

As a result of events occurring before 1 January 1951 and owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

This general definition is discussed in detail below.

B. INTERPRETATION OF TERMS

(1) “Events occurring before 1 January 1951”

35. The origin of this 1951 dateline is explained in paragraph 7 of the Introduction. As a result of the 1967 Protocol this dateline has lost much of its practical significance. An interpretation of the word “events” is therefore of interest only in the small number of States parties to the 1951 Convention that are not also party to the 1967 Protocol.5

4 “Nansen Passport”: a certificate of identity for use as a travel document, issued to refugees under the provisions of prewar instruments.5 See Annex IV.

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36. The word “events” is not defined in the 1951 Convention, but was understood to mean “hap‑penings of major importance involving territorial or profound political changes as well as systematic programmes of persecution which are after‑effects of earlier changes”.6 The dateline refers to “events” as a result of which, and not to the date on which, a person becomes a refugee, not does it apply to the date on which he left his country. A refugee may have left his country before or after the datelines, provided that his fear of persecution is due to “events” that occurred before the dateline or to after‑ef‑fects occurring at a later date as a result of such events.7

(2) “well founded fear of being persecuted”

(a) General analysis

37. The phrase “well‑founded fear of being persecuted” is the key phrase of the definition. It reflects the views of its authors as to the main elements of refugee character. It replaces the earlier method of defining refugees by categories (i.e. persons of a certain origin not enjoying the protection of their country) by the general concept of “fear” for a relevant motive. Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant’s statements rather than a judgement on the situation prevailing in his country of origin.

38. To the element of fear – a state of mind and a subjective condition – is added the qualification “well‑founded”. This implies that it is not only the frame of mind of the person concerned that deter‑mines his refugee status, but that this frame of mind must be supported by an objective situation. The term “well‑founded fear” therefore contains a subjective and an objective element, and in determining whether well‑founded fear exists, both elements must be taken into consideration.

39. It may be assumed that, unless he seeks adventure or just wishes to see the world, a person would not normally abandon his home and country without some compelling reason. There may be many reasons that are compelling and understandable, but only one motive has been singled out to denote a refugee. The expression “owing to well‑founded fear of being persecuted” – for the reasons stated – by indicating a specific motive automatically makes all other reasons for escape irrelevant to the definition. It rules out such persons as victims of famine or natural disaster, unless they also have well‑founded fear of persecution for one of the reasons stated. Such other motives may not, however, be altogether irrelevant to the process of determining refugee status, since all the circumstances need to be taken into account for a proper understanding of the applicant’s case.

40. An evaluation of the subjective element is inseparable from an assessment of the personality of the applicant, since psychological reactions of different individuals may not be the same in identical con‑ditions. One person may have strong political or religious convictions, the disregard of which would make his life intolerable; another may have no such strong convictions. One person may make an impulsive decision to escape; another may carefully plan his departure.

41. Due to the importance that the definition attaches to the subjective element, an assessment of credibility is indispensable where the case is not sufficiently clear from the facts on record. It will be necessary to take into account the personal and family background of the applicant, his membership of a particular racial, religious, national, social or political group, his own interpretation of his situation, and his personal experiences – in other words, everything that may serve to indicate that the predom‑inant motive for his application is fear. Fear must be reasonable. Exaggerated fear, however, may be well‑founded if, in all the circumstances of the case, such a state of mind can be regarded as justified.

42. As regards the objective clement, it is necessary to evaluate the statements made by the appli‑cant. The competent authorities that are called upon to determine refugee status are not required to pass judgement on conditions in the applicant’s country of origin. The applicant’s statements cannot, however, be considered in the abstract, and must be viewed in the context of the relevant background

6 UN Document E/1618 page 39.7 Loc. cit.

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situation. A knowledge of conditions in the applicant’s country of origin –while not a primary objective – is an important element in assessing the applicant’s credibility. In general, the applicant’s fear should be considered well‑founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there.

43. These considerations need not necessarily be based on the applicant’s own personal experience. What, for example, happened to his friends and relatives and other members of the same racial or social group may well show that his fear that sooner or later he also will become a victim of persecu‑tion is well‑founded. The laws of the country of origin, and particularly the manner in which they are applied, will be relevant. The situation of each person must, however, be assessed on its own merits. In the case of a well‑known personality, the possibility of persecution may be greater than in the case of a person in obscurity. All these factors, e.g. a person’s character, his background, his influence, his wealth or his outspokenness, may lead to the conclusion that his fear of persecution is “well‑founded”.

44. While refugee status must normally be determined on an individual basis, situations have also arisen in which entire groups have been displaced under circumstances indicating that members of the group could be considered individually as refugees. In such situations the need to provide assis‑tance is often extremely urgent and it may not be possible for purely practical reasons to carry out an individual determination of refugee status for each member of the group. Recourse has therefore been had to so‑called “group determination” of refugee status, whereby each member of the group is regarded prima facie (i.e. in the absence of evidence to the contrary) as a refugee.

45. Apart from the situations of the type referred to in the preceding paragraph, an applicant for refu‑gee status must normally show good reason why he individually fears persecution. It may be assumed that a person has well‑founded fear of being persecuted if he has already been the victim of persecu‑tion for one of the reasons enumerated in the 1951 Convention. However, the word “fear” refers not only to persons who have actually been persecuted, but also to those who wish to avoid a situation entailing the risk of persecution.

46. The expressions “fear of persecution” or even “persecution” are usually foreign to a refugee’s nor‑mal vocabulary. A refugee will indeed only rarely invoke “fear of persecution” in these terms, though it will often be implicit in his story. Again, while a refugee may have very definite opinions for which he has had to suffer, he may not, for psychological reasons, be able to describe his experiences and situation in political terms.

47. A typical test of the well‑foundedness of fear will arise when an applicant is in possession of a valid national passport. It has sometimes been claimed that possession of a passport signifies that the issuing authorities do not intend to persecute the holder, for otherwise they would not have issued a passport to him. Though this may be true in some cases, many persons have used a legal exit from their country as the only means of escape without ever having revealed their political opinions, a knowledge of which might place them in a dangerous situation vis‑à‑vis the authorities.

48. Possession of a passport cannot therefore always be considered as evidence of loyalty on the part of the holder, or as an indication of the absence of fear. A passport may even be issued to a person who is undesired in his country of origin, with the sole purpose of securing his departure, and there may also be cases where a passport has been obtained surreptitiously. In conclusion, therefore, the mere possession of a valid national passport is no bar to refugee status.

49. If, on the other hand, an applicant, without good reason, insists on retaining a valid passport of a country of whose protection he is allegedly unwilling to avail himself, this may cast doubt on the validity of his claim to have “well‑founded fear”. Once recognized, a refugee should not normally retain his national passport.

50. There may, however, be exceptional situations in which a person fulfilling the criteria of refugee status may retain his national passport‑or be issued with a new one by the authorities of his country of origin under special arrangements. Particularly where such arrangements do not imply that the

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holder of the national passport is free to return to his country without prior permission, they may not be incompatible with refugee status.

(b) Persecution

51. There is no universally accepted definition of “persecution”, and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention, it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights – for the same reasons – would also constitute persecution.

52. Whether other prejudicial actions or threats would amount to persecution will depend on the cir‑cumstances of each case, including the subjective element to which reference has been made in the preceding paragraphs. The subjective character of fear of persecution requires an evaluation of the opinions and feelings of the person concerned. It is also in the light of such opinions and feelings that any actual or anticipated measures against him must necessarily be viewed. Due to variations in the psychological make‑up of individuals and in the circumstances of each case, interpretations of what amounts to persecution are bound to vary.

53. In addition, an applicant may have been subjected to various measures not in themselves amount‑ing to persecution (e.g. discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well‑founded fear of persecution on “cumulative grounds”. Needless to say, it is not possible to lay down a general rule as to what cumulative reasons can give rise to a valid claim to refugee status. This will necessarily depend on all the circumstances, including the particular geographical, historical and ethnological context.

(c) Discrimination

54. Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practise his religion, or his access to normally available educational facilities.

55. Where measures of discrimination are, in themselves, not of a serious character, they may never‑theless give rise to a reasonable fear of persecution if they produce, in the mind of the person con‑cerned, a feeling of apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in themselves amount to persecution must be determined in the light of all the circumstances. A claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved.8

(d) Punishment

56. Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim – or potential victim – of injustice, not a fugitive from justice.

57. The above distinction may, however, occasionally be obscured. In the first place, a person guilty of a common law offence may be liable to excessive punishment, which may amount to persecu‑tion within the meaning of the definition. Moreover, penal prosecution for a reason mentioned in the definition (for example, in respect of “illegal” religious instruction given to a child) may in itself amount to persecution.

8 See also para. 53.

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58. Secondly, there may be cases in which a person, besides fearing prosecution or punishment for a common law crime, may also have “well founded fear of persecution”. In such cases the person concerned is a refugee. It may, however, be necessary to consider whether the crime in question is not of such a serious character as to bring the applicant within the scope of one of the exclusion clauses.9

59. In order to determine whether prosecution amounts to persecution, it will also be necessary to refer to the laws of the country concerned, for it is possible for a law not to be in conformity with accepted human rights standards. More often, however, it may not be the law but its application that is discriminatory. Prosecution for an offence against “public order”, e.g. for distribution of pamphlets, could for example be a vehicle for the persecution of the individual on the grounds of the political content of the publication.

60. In such cases, due to the obvious difficulty involved in evaluating the laws of another country, national authorities may frequently have to take decisions by using their own national legislation as a yardstick. Moreover, recourse may usefully be had to the principles set out in the various internation‑al instruments relating to human rights, in particular the International Covenants on Human Rights, which contain binding commitments for the States parties and are instruments to which many States parties to the 1951 Convention have acceded.

(e) Consequences of unlawful departure or unauthorized stay outside country of origin

61. The legislation of certain States imposes severe penalties on nationals who depart from the coun‑try in an unlawful manner or remain abroad without authorization. Where there is reason to believe that a person, due to his illegal departure or unauthorized stay abroad is liable to such severe penalties his recognition as a refugee will be justified if it can be shown that his motives for leaving or remaining outside the country are related to the reasons enumerated in Article 1 A (2) of the 1951 Convention (see paragraph 66 below).

(f) Economic migrants distinguished from refugees

62. A migrant is a person who, for reasons other than those contained in the definition, voluntarily leaves his country in order to take up residence elsewhere. He may be moved by the desire for change or adventure, or by family or other reasons of a personal nature. If he is moved exclusively by econom‑ic considerations, he is an economic migrant and not a refugee.

63. The distinction between an economic migrant and a refugee is, however, sometimes blurred in the same way as the distinction between economic and political measures in an applicant’s country of origin is not always clear. Behind economic measures affecting a person’s livelihood there may be racial, religious or political aims or intentions directed against a particular group. Where economic measures destroy the economic existence of a particular section of the population (e.g. withdrawal of trading rights from, or discriminatory or excessive taxation of, a specific ethnic or religious group), the victims may according to the circumstances become refugees on leaving the country.

64. Whether the same would apply to victims of general economic measures (i.e. those that are applied to the whole population without discrimination) would depend on the circumstances of the case. Objections to general economic measures are not by themselves good reasons for claiming refugee status. On the other hand, what appears at first sight to be primarily an economic motive for departure may in reality also involve a political element, and it may be the political opinions of the individual that expose him to serious consequences, rather than his objections to the economic measures themselves.

(g) Agents of persecution

65. Persecution is normally related to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country

9 See para. 144 to 156.

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concerned. A case in point may be religious intolerance, amounting to persecution, in a country oth‑erwise secular, but where sizeable fractions of the population do not respect the religious beliefs of their neighbours. Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.

(3) “for reasons of race, religion, nationality, membership of a particular social group or political opinion”


66. In order to be considered a refugee, a person must show well‑founded fear of persecution for one of the reasons stated above. It is immaterial whether the persecution arises from any single one of these reasons or from a combination of two or more of them. Often the applicant himself may not be aware of the reasons for the persecution feared. It is not, however, his duty to analyze his case to such an extent as to identify the reasons in detail.

67. It is for the examiner, when investigating the facts of the case, to ascertain the reason or reasons for the persecution feared and to decide whether the definition in the 1951 Convention is met with in this respect. It is evident that the reasons for persecution under these various headings will fre‑quently overlap. Usually there will be more than one clement combined in one person, e.g. a political opponent who belongs to a religious or national group, or both, and the combination of such reasons in his person may be relevant in evaluating his well‑founded fear.

(b) Race

68. Race, in the present connexion, has to be understood in its widest sense to include all kinds of eth‑nic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimi‑nation for reasons of race has found world‑wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.

69. Discrimination on racial grounds will frequently amount to persecution in the sense of the 1951 Convention. This will be the case if, as a result of racial discrimination, a person’s human dignity is affected to such an extent as to be incompatible with the most elementary and inalienable human rights, or where the disregard of racial barriers is subject to serious consequences.

70. The mere fact of belonging to a certain racial group will normally not be enough to substantiate a claim to refugee status. There may, however, be situations where, due to particular circumstances affecting the group, such membership will in itself be sufficient ground to fear persecution.

(c) Religion

71. The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right includes the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.

72. Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

73. Mere membership of a particular religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.

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(d) Nationality

74. The term “nationality” in this context is not to be understood only as “citizenship”. It refers also to membership of an ethnic or linguistic group and may occasionally overlap with the term “race”. Persecution for reasons of nationality may consist of adverse attitudes and measures directed against a national (ethnic, linguistic) minority and in certain circumstances the fact of belonging to such a minority may in itself give rise to well‑founded fear of persecution.

75. The co‑existence within the boundaries of a State of two or more national (ethnic, linguistic) groups may create situations of conflict and also situations of persecution or danger of persecution. It may not always be easy to distinguish between persecution for reasons of nationality and persecution for reasons of political opinion when a conflict between national groups is combined with political movements, particularly where a political movement is identified with a specific “nationality”.

76. Whereas in most cases persecution for reason of nationality is feared by persons belonging to a national minority, there have been many cases in various continents where a person belonging to a majority group may fear persecution by a dominant minority.

(e) Membership of a particular social group

77. A “particular social group” normally comprises persons of similar background, habits or social sta‑tus. A claim to fear of persecution under this heading may frequently overlap with a claim to fear of persecution on other grounds, i.e. race, religion or nationality.

78. Membership of such a particular social group may be at the root of persecution because there is no confidence in the group’s loyalty to the Government or because the political outlook, antecedents or economic activity of its members, or the very existence of the social group as such, is held to be an obstacle to the Government’s policies.

79. Mere membership of a particular social group will not normally be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground to fear persecution.

(f) Political opinion

80. Holding political opinions different from those of the Government is not in itself a ground for claiming refugee status, and an applicant must show that he has a fear of persecution for holding such opinions. This presupposes that the applicant holds opinions not tolerated by the authorities, which are critical of their policies or methods. It also presupposes that such opinions have come to the notice of the authorities or are attributed by them to the applicant. The political opinions of a teacher or writer may be more manifest than those of a person in a less exposed position. The relative importance or tenacity of the applicant’s opinions – in so far as this can be established from all the circumstances of the case – will also be relevant.

81. While the definition speaks of persecution “for reasons of political opinion” it may not always be possible to establish a causal link between the opinion expressed and the related measures suffered or feared by the applicant. Such measures have only rarely been based expressly on “opinion”. More frequently, such measures take the form of sanctions for alleged criminal acts against the ruling power. It will, therefore, be necessary to establish the applicant’s political opinion, which is at the root of his behaviour, and the fact that it has led or may lead to the persecution that he claims to fear.

82. As indicated above, persecution “for reasons of political opinion” implies that an applicant holds an opinion that either has been expressed or has come to the attention of the authorities. There may, however, also be situations in which the applicant has not given any expression to his opinions. Due to the strength of his convictions, however, it may be reasonable to assume that his opinions will sooner or later find expression and that the applicant will, as a result, come into conflict with the authorities. Where this can reasonably be assumed, the applicant can be considered to have fear of persecution for reasons of political opinion.

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83. An applicant claiming fear of persecution because of political opinion need not show that the authorities of his country of origin knew of his opinions before he left the country. He may have con‑cealed his political opinion and never have suffered any discrimination or persecution. However, the mere fact of refusing to avail himself of the protection of his Government, or a refusal to return, may disclose the applicant’s true state of mind and give rise to fear of persecution. In such circumstances the test of well‑founded fear would be based on an assessment of the consequences that an applicant having certain political dispositions would have to face if he returned. This applies particularly to the so‑called refugee “sur place”.10

84. Where a person is subject to prosecution or punishment for a political offence, a distinction may have to be drawn according to whether the prosecution is for political opinion or for politically‑mo‑tivated acts. If the prosecution pertains to a punishable act committed out of political motives, and if the anticipated punishment is in conformity with the general law of the country concerned, fear of such prosecution will not in itself make the applicant a refugee.

85. Whether a political offender can also be considered a refugee will depend upon various other factors. Prosecution for an offence may, depending upon the circumstances, be a pretext for pun‑ishing the offender for his political opinions or the expression thereof. Again, there may be reason to believe that a political offender would be exposed to excessive or arbitrary punishment for the alleged offence. Such excessive or arbitrary punishment will amount to persecution.

86. In determining whether a political offender can be considered a refugee, regard should also be had to the following elements: personality of the applicant, his political opinion, the motive behind the act, the nature of the act committed, the nature of the prosecution and its motives; finally, also, the nature of the law on which the prosecution is based. These elements may go to show that the person concerned has a fear of persecution and not merely a fear of prosecution and punishment – within the law – for an act committed by him.

(4) “is outside the country of his nationality”


87. In this context, “nationality” refers to “citizenship”. The phrase “is outside the country of his na‑tionality” relates to persons who have a nationality, as distinct from stateless persons. In the majority of cases, refugees retain the nationality of their country of origin.

88. It is a general requirement for refugee status that an applicant who has a nationality be outside the country of his nationality. There are no exceptions to this rule. International protection cannot come into play as long as a person is within the territorial jurisdiction of his home country.11

89. Where, therefore, an applicant alleges fear of persecution in relation to the country of his nation‑ality, it should be established that he does in fact possess the nationality of that country. There may, however, be uncertainty as to whether a person has a nationality. He may not know himself, or he may wrongly claim to have a particular nationality or to be stateless. Where his nationality cannot be clearly established, his refugee status should be determined in a similar manner to that of a stateless person, i.e. instead of the country of his nationality, the country of his former habitual residence will have to be taken into account. (See paragraphs 101 to 105 below.)

90. As mentioned above, an applicant’s well‑founded fear of persecution must be in relation to the country of his nationality. As long as he has no fear in relation to the country of his nationality, he can be expected to avail himself of that country’s protection. He is not in need of international protection and is therefore not a refugee.

10 See paras. 94 to 96.11 In certain countries, particularly in Latin America, there is a custom of “diplomatic asylum”, i.e. granting refuge to political fugitives in foreign embas‑sies. While a person thus sheltered may be considered to be outside his country’s jurisdiction, he is not outside its territory and cannot therefore be considered under the terms of the 1951 Convention. The former notion of the “extraterritoriality” of embassies has lately been replaced by the term “inviolability” used in the 1961 Vienna Convention on Diplomatic Relations.

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91. The fear of being persecuted need not always extend to the whole territory of the refugee’s coun‑try of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war condi‑tions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.

92. The situation of persons having more than one nationality is dealt with in paragraphs 106 and 107 below.

93. Nationality may be proved by the possession of a national passport. Possession of such a passport creates a prima facie presumption that the holder is a national of the country of issue, unless the passport itself states otherwise. A person holding a passport showing him to be a na‑tional of the issuing country, but who claims that he does not possess that country’s nationality, must substantiate his claim, for example, by showing that the passport is a so‑called “passport of convenience” (an apparently regular national passport that is sometimes issued by a national authority to non‑nationals). However, a mere assertion by the holder that the passport was issued to him as a matter of convenience for travel purposes only is not sufficient to rebut the presump‑tion of nationality. In certain cases, it might be possible to obtain information from the authority that issued the passport. If such information cannot be obtained, or cannot be obtained within reasonable time, the examiner will have to decide on the credibility of the applicant’s assertion in weighing all other elements of his story.

(b) Refugees “sur place”

94. The requirement that a person must be outside his country to be a refugee does not mean that he must necessarily have left that country illegally, or even that he must have left it on account of well‑founded fear. He may have decided to ask for recognition of his refugee status after having al‑ready been abroad for some time. A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee “sur place”.

95. A person becomes a refugee “sur place” due to circumstances arising in his country of origin during his absence. Diplomats and other officials serving abroad, prisoners of war, students, migrant workers and others have applied for refugee status during their residence abroad and have been recognized as refugees.

96. A person may become a refugee “sur place” as a result of his own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well‑founded fear of persecution must be determined by a care‑ful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person’s country of origin and how they are likely to be viewed by those authorities.

(5) “and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”

97. Unlike the phrase dealt with under (6) below, the present phrase relates to persons who have a na‑tionality. Whether unable or unwilling to avail himself of the protection of his Government, a refugee is always a person who does not enjoy such protection.

98. Being unable to avail himself of such protection implies circumstances that are beyond the will of the person concerned. There may, for example, be a state of war, civil war or other grave disturbance, which prevents the country of nationality from extending protection or makes such protection inef‑fective. Protection by the country of nationality may also have been denied to the applicant. Such denial of protection may confirm or strengthen the applicant’s fear of persecution, and may indeed be an element of persecution.

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99. What constitutes a refusal of protection must be determined according to the circumstances of the case. If it appears that the applicant has been denied services (e.g., refusal of a national passport or extension of its validity, or denial of admittance to the home territory) normally accorded to his co‑nationals, this may constitute a refusal of protection within the definition.

100. The term unwilling refers to refugees who refuse to accept the protection of the Government of the country of their nationality.12 It is qualified by the phrase “owing to such fear”. Where a per‑son is willing to avail himself of the protection of his home country, such willingness would normally be incompatible with a claim that he is outside that country “owing to well‑founded fear of perse‑cution”. Whenever the protection of the country of nationality is available, and there is no ground based on well‑founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee.

(6) “or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”

101. This phrase, which relates to stateless refugees, is parallel to the preceding phrase, which con‑cerns refugees who have a nationality. In the case of stateless refugees, the “country of nationality” is replaced by “the country of his former habitual residence”, and the expression “unwilling to avail himself of the protection...” is replaced by the words “unwilling to return to it”. In the case of a state‑less refugee, the question of “availment of protection” of the country of his former habitual residence does not, of course, arise. Moreover, once a stateless person has abandoned the country of his former habitual residence for the reasons indicated in the definition, he is usually unable to return.

102. It will be noted that not all stateless persons are refugees. They must be outside the country of their former habitual residence for the reasons indicated in the definition. Where these reasons do not exist, the stateless person is not a refugee.

103. Such reasons must be examined in relation to the country of “former habitual residence” in regard to which fear is alleged. This was defined by the drafters of the 1951 Convention as “the country in which he had resided and where he had suffered or fears he would suffer persecution if he returned”.13

104. A stateless person may have more than one country of former habitual residence, and he may have a fear of persecution in relation to more than one of them. The definition does not require that he satisfies the criteria in relation to all of them.

105. Once a stateless person has been determined a refugee in relation to “the country of his former habitual residence”, any further change of country of habitual residence will not affect his refugee status.

(7) Dual or multiple nationality

Article 1 A (2), paragraph 2, of the 1951 Convention:

In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well‑founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

106. This clause, which is largely self‑explanatory, is intended to exclude from refugee status all per‑sons with dual or multiple nationality who can avail themselves of the protection of at least one of the countries of which they are nationals. Wherever available, national protection takes precedence over international protection.

12 UN Document E/1618, p. 39.13 Loc. cit.

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107. In examining the case of an applicant with dual or multiple nationality, it is necessary, however, to distinguish between the possession of a nationality in the legal sense and the availability of protection by the country concerned. There will be cases where the applicant has the nationality of a country in regard to which he alleges no fear, but such nationality may be deemed to be ineffective as it does not entail the protection normally granted to nationals. In such circumstances, the possession of the second nationality would not be inconsistent with refugee status. As a rule, there should have been a request for, and a refusal of, protection before it can be established that a given nationality is inef‑fective. If there is no explicit refusal of protection, absence of a reply within reasonable time may be considered a refusal.

(8) Geographical scope

108. At the time when the 1951 Convention was drafted, there was a desire by a number of States not to assume obligations the extent of which could not be foreseen. This desire led to the inclusion of the 1951 dateline, to which reference has already been made (paragraphs 35 and 36 above). In re‑sponse to the wish of certain Governments, the 1951 Convention also gave to Contracting States the possibility of limiting their obligations under the Convention to persons who had become refugees as a result of events occurring in Europe.

109. Accordingly, Article 1 B of the 1951 Convention states that:

(1) For the purposes of this Convention, the words “events occurring before 1 January 1951” in Article 1, Section A, shall be understood to mean either

(a) “events occurring in Europe before 1 January 1951”; or

(b) “events occurring in Europe and elsewhere before 1 January 1951”;

and each Contracting State shall make a declaration at the time of signature, ratification or accession, specify‑ing which of these meanings it applies for the purposes of its obligations under this Convention.

(2) Any Contracting State which has adopted alternative (a) may at any time extend its obligations by adopting alternative (b) by means of a notification addressed to the Secretary‑General of the United Nations.

110. Of the States parties to the 1951 Convention, at the time of writing 9 still adhere to alternative (a), “events occurring in Europe”.14 While refugees from other parts of the world frequently obtain asylum in some of these countries, they are not normally accorded refugee status under the 1951 Convention.

14 See Annex IV.

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CHAPTER III – CESSATION CLAUSES

A. GENERAL

111. The so‑called “cessation clauses” (Article 1 C (1) to (6) of the 1951 Convention) spell out the conditions under which a refugee ceases to be a refugee. They are based on the consideration that international protection should not be granted where it is no longer necessary or justified.

112. Once a person’s status as a refugee has been determined, it is maintained unless he comes within the terms of one of the cessation clauses.15 This strict approach towards the determination of refugee status results from the need to provide refugees with the assurance that their status will not be subject to constant review in the light of temporary changes – not of a fundamental character – in the situation prevailing in their country of origin.

113. Article 1 C of the 1951 Convention provides that:

This Convention shall cease to apply to any person falling under the terms of section A if:

(1) He has voluntarily re‑availed himself of the protection of the country of his nationality; or

(2) Having lost his nationality, he has voluntarily re‑acquired it; or

(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or

(4) He has voluntarily re‑established himself in the country which he left or outside which he remained owing to fear of persecution; or

(5) He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;

Provided that this paragraph shall not apply to a refugee falling under Section A (1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;

(6) Being a person who has no nationality he is, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;

Provided that this paragraph shall not apply to a refugee falling under section A (1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.

114. Of the six cessation clauses, the first four reflect a change in the situation of the refugee that has been brought about by himself, namely:

1. voluntary re‑availment of national protection;

2. voluntary re‑acquisition of nationality;

3. acquisition of a new nationality;

4. voluntary re‑establishment in the country where persecution was feared.

115. The last two cessation clauses, (5) and (6), are based on the consideration that international protection is no longer justified on account of changes in the country where persecution was feared, because the reasons for a person becoming a refugee have ceased to exist.

116. The cessation clauses are negative in character and are exhaustively enumerated. They should therefore be interpreted restrictively, and no other reasons may be adduced by way of analogy to justify the withdrawal of refugee status. Needless to say, if a refugee, for whatever reasons, no longer 15 In some cases refugee status may continue, even though the reasons for such status have evidently ceased to exist. Cf sub‑sections (5) and (6) (paras. 135 to 139 below).

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wishes to be considered a refugee, there will be no call for continuing to grant him refugee status and international protection.

117. Article 1 C does not deal with the cancellation of refugee status. Circumstances may, however, come to light that indicate that a person should never have been recognized as a refugee in the first place; e.g. if it subsequently appears that refugee status was obtained by a misrepresentation of ma‑terial facts, or that the person concerned possesses another nationality, or that one of the exclusion clauses would have applied to him had all the relevant facts been known. In such cases, the decision by which he was determined to be a refugee will normally be cancelled.


(1) Voluntary re‑availment of national protection

Article 1 C (1) of the 1951 Convention:

He has voluntarily re‑availed himself of the protection of the country of his nationality;

118. This cessation clause refers to a refugee possessing a nationality who remains outside the coun‑try of his nationality. (The situation of a refugee who has actually returned to the country of his na‑tionality is governed by the fourth cessation clause, which speaks of a person having “re‑established” himself in that country.) A refugee who has voluntarily re‑availed himself of national protection is no longer in need of international protection. He has demonstrated that he is no longer “unable or un‑willing to avail himself of the protection of the country of his nationality”.

119. This cessation clause implies three requirements:

(a) voluntariness: the refugee must act voluntarily;

(b) intention: the refugee must intend by his action to re‑avail himself of the protection of the country of his nationality;

(c) re‑availment: the refugee must actually obtain such protection.

120. If the refugee does not act voluntarily, he will not cease to be a refugee. If he is instructed by an authority, e.g. of his country of residence, to perform against his will an act that could be interpreted as a re‑availment of the protection of the country of his nationality, such as applying to his Consulate for a national passport, he will not cease to be a refugee merely because he obeys such an instruction. He may also be constrained, by circumstances beyond his control, to have recourse to a measure of protec‑tion from his country of nationality. He may, for instance, need to apply for a divorce in his home coun‑try because no other divorce may have the necessary international recognition. Such an act cannot be considered to be a “voluntary re‑availment of protection” and will not deprive a person of refugee status.

121. In determining whether refugee status is lost in these circumstances, a distinction should be drawn between actual re‑availment of protection and occasional and incidental contacts with the national authorities. If a refugee applies for and obtains a national passport or its renewal, it will, in the absence of proof to the contrary, be presumed that he intends to avail himself of the protection of the country of his nationality. On the other hand, the acquisition of documents from the national authorities, for which non‑nationals would likewise have to apply – such as a birth or marriage certif‑icate – or similar services, cannot be regarded as a re‑availment of protection.

122. A refugee requesting protection from the authorities of the country of his nationality has only “re‑availed” himself of that protection when his request has actually been granted. The most frequent case of “re‑availment of protection” will be where the refugee wishes to return to his country of na‑tionality. He will not cease to be a refugee merely by applying for repatriation. On the other hand,

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obtaining an entry permit or a national passport for the purposes of returning will, in the absence of proof to the contrary, be considered as terminating refugee status.16 This does not, however, preclude assistance being given to the repatriant – also by UNHCR – in order to facilitate his return.

123. A refugee may have voluntarily obtained a national passport, intending either to avail himself of the protection of his country of origin while staying outside that country, or to return to that country. As stated above, with the receipt of such a document he normally ceases to be a refugee. If he sub‑sequently renounces either intention, his refugee status will need to be determined afresh. He will need to explain why he changed his mind, and to show that there has been no basic change in the conditions that originally made him a refugee.

124. Obtaining a national passport or an extension of its validity may, under certain exceptional con‑ditions, not involve termination of refugee status (see paragraph 120 above). This could for example be the case where the holder of a national passport is not permitted to return to the country of his nationality without specific permission.

125. Where a refugee visits his former home country not with a national passport but, for example, with a travel document issued by his country of residence, he has been considered by certain States to have re‑availed himself of the protection of his former home country and to have lost his refugee status under the present cessation clause. Cases of this kind should, however, be judged on their individual merits. Visiting an old or sick parent will have a different bearing on the refugee’s relation to his former home country than regular visits to that country spent on holidays or for the purpose of establishing business relations.

(2) Voluntary re‑acquisition of nationality


Having lost his nationality, he has voluntarily re‑acquired it;

126. This clause is similar to the preceding one. It applies to cases where a refugee, having lost the nationality of the country in respect of which he was recognized as having well‑founded fear of per‑secution, voluntarily re‑acquires such nationality.

127. While under the preceding clause (Article 1 C (1)) a person having a nationality ceases to be a refugee if he re‑avails himself of the protection attaching to such nationality, under the present clause (Article 1 C (2)) he loses his refugee status by re‑acquiring the nationality previously lost.17

128. The re‑acquisition of nationality must be voluntary. The granting of nationality by operation of law or by decree does not imply voluntary reacquisition, unless the nationality has been expressly or impliedly accepted. A person does not cease to be a refugee merely because he could have reacquired his former nationality by option, unless this option has actually been exercised. If such former nation‑ality is granted by operation of law, subject to an option to reject, it will be regarded as a voluntary re‑acquisition if the refugee, with full knowledge, has not exercised this option; unless he is able to invoke special reasons showing that it was not in fact his intention to re‑acquire his former nationality.

(3) Acquisition of a new nationality and protection


He has acquired a new nationality and enjoys the protection of the country of his new nationality;

16 The above applies to a refugee who is still outside his country. It will be noted that the fourth cessation clause provides that any refugee will cease to be a refugee when he has voluntarily “re‑established” himself in his country of nationality or former habitual residence.17 In the majority of cases a refugee maintains the nationality of his former home country. Such nationality may be lost by individual or collective measures of deprivation of nationality. Loss of nationality (statelessness) is therefore not necessarily implicit in refugee status.

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129. As in the case of the re‑acquisition of nationality, this third cessation clause derives from the principle that a person who enjoys national protection is not in need of international protection.

130. The nationality that the refugee acquires is usually that of the country of his residence. A refugee living in one country may, however, in certain cases, acquire the nationality of another country. If he does so, his refugee status will also cease, provided that the new nationality also carries the protec‑tion of the country concerned. This requirement results from the phrase “and enjoys the protection of the country of his new nationality”.

131. If a person has ceased to be a refugee, having acquired a new nationality, and then claims well‑founded fear in relation to the country of his new nationality, this creates a completely new situ‑ation and his status must be determined in relation to the country of his new nationality.

132. Where refugee status has terminated through the acquisition of a new nationality, and such new nationality has been lost, depending on the circumstances of such loss, refugee status may be revived.

(4) Voluntary re‑establishment in the country where persecution was feared


He has voluntarily re‑established himself in the country which he left or outside which he remained owing to fear of persecution;

133. This fourth cessation clause applies both to refugees who have a nationality and to stateless refugees. It relates to refugees who, having returned to their country of origin or previous residence, have not previously ceased to be refugees under the first or second cessation clauses while still in their country of refuge.

134. The clause refers to “voluntary re‑establishment”. This is to be understood as return to the coun‑try of nationality or former habitual residence with a view to permanently residing there. A temporary visit by a refugee to his former home country, not with a national passport but, for example, with a travel document issued by his country of residence, does not constitute “re‑establishment” and will not involve loss of refugee status under the present clause.18

(5) Nationals whose reasons for becoming a refugee have ceased to exist


He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;

Provided that this paragraph shall not apply to a refugee falling under section A (1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;

135. Circumstances” refer to fundamental changes in the country, which can be assumed to remove the basis of the fear of persecution. A mere – possibly transitory – change in the facts surrounding the individual refugee’s fear, which does not entail such major changes of circumstances, is not sufficient to make this clause applicable. A refugee’s status should not in principle be subject to frequent review to the detriment of his sense of security, which international protection is intended to provide.

136. The second paragraph of this clause contains an exception to the cessation provision contained in the first paragraph. It deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamen‑tal changes have occurred in his country of origin. The reference to Article 1 A (1) indicates that the 18 See para. 125 above.

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exception applies to “statutory refugees”. At the time when the 1951 Convention was elaborated, these ‘formed the majority of refugees. The exception, however, reflects a more general humanitarian principle, which could also be applied to refugees other than statutory refugees. It is frequently recog‑nized that a person who – or whose family – has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee.

(6) Stateless persons whose reasons for becoming a refugee have ceased to exist


Being a person who has no nationality he is, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;


137. This sixth and last cessation clause is parallel to the fifth cessation clause, which concerns per‑sons who have a nationality. The present clause deals exclusively with stateless persons who are able to return to the country of their former habitual residence.

138. “Circumstances” should be interpreted in the same way as under the fifth cessation clause.

139. It should be stressed that, apart from the changed circumstances in his country of former habitu‑al residence, the person concerned must be able to return there. This, in the case of a stateless person, may not always be possible.

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CHAPTER IV – EXCLUSION CLAUSES

A. GENERAL

140. The 1951 Convention, in Sections D, E and F of Article 1, contains provisions whereby persons otherwise having the characteristics of refugees, as defined in Article 1, Section A, are excluded from refugee status. Such persons fall into three groups. The first group (Article 1 D) consists of persons already receiving United Nations protection or assistance; the second group (Article 1 E) deals with persons who are not considered to be in need of international protection; and the third group (Article 1 F) enumerates the categories of persons who are not considered to be deserving of international protection.

141. Normally it will be during the process of determining a person’s refugee status that the facts leading to exclusion under these clauses will emerge. It may, however, also happen that facts justifying exclusion will become known only after a person has been recognized as a refugee. In such cases, the exclusion clause will call for a cancellation of the decision previously taken.


(1) Persons already receiving United Nations protection or assistance

Article 1 D of the 1951 Convention:

This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.

When such protection or assistance has ceased for any reason, without the position of such persons being de‑finitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.

142. Exclusion under this clause applies to any person who is in receipt of protection or assistance from organs or agencies of the United Nations, other than the United Nations High Commissioner for Refugees. Such protection or assistance was previously given by the former United Nations Ko‑rean Reconstruction Agency (UNKRA) and is currently given by the United Nations Relief and Works Agency for Palestine Refugees In the Near East (UNRWA). There could be other similar situations in the future.

143. With regard to refugees from Palestine, it will be noted that UNRWA operates only in certain areas of the Middle East, and it is only there that its protection or assistance are given. Thus, a refugee from Palestine who finds himself outside that area does not enjoy the assistance mentioned and may be considered for determination of his refugee status under the criteria of the 1951 Convention. It should normally be sufficient to establish that the circumstances which originally made him qualify for protection or assistance from UNRWA still persist and that he has neither ceased to be a refugee under one of the cessation clauses nor is excluded from the application of the Convention under one of the exclusion clauses.

(2) Persons not considered to be in need of international protection

Article 1 E of the 1951 Convention:

This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

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144. This provision relates to persons who might otherwise qualify for refugee status and who have been received in a country where they have been granted most of the rights normally enjoyed by nationals, but not formal citizenship. (They are frequently referred to as “national refugees”.) The country that has received them is frequently one where the population is of the same ethnic origin as themselves.19

145. There is no precise definition of “rights and obligations” that would constitute a reason for ex‑clusion under this clause. It may, however, be said that the exclusion operates if a person’s status is largely assimilated to that of a national of the country. In particular he must, like a national, be fully protected against deportation or expulsion.

146. The clause refers to a person who has “taken residence” in the country concerned. This implies continued residence and not a mere visit. A person who resides outside the country and does not enjoy the diplomatic protection of that country is not affected by the exclusion clause.

(3) Persons considered not to be deserving of international protection

Article 1 F of the 1951 Convention:

The provisions of this Convention shall not apply to any person with respect to whom there are serious rea‑sons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the inter‑national instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non‑political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

147. The pre‑war international instruments that defined various categories of refugees contained no provisions for the exclusion of criminals. It was immediately after the Second World War that for the first time special provisions were drawn up to exclude from the large group of then assisted refugees certain persons who were deemed unworthy of international protection.

148. At the time when the Convention was drafted, the memory of the trials of major war criminals was still very much alive, and there was agreement on the part of States that war criminals should not be protected. There was also a desire on the part of States to deny admission to their territories of criminals who would present a danger to security and public order.

149. The competence to decide whether any of these exclusion clauses are applicable is incumbent upon the Contracting State in whose territory the applicant seeks recognition of his refugee status. For these clauses to apply, it is sufficient to establish that there are “serious reasons for considering” that one of the acts described has been committed. Formal proof of previous penal prosecution is not required. Considering the serious consequences of exclusion for the person concerned, however, the interpretation of these exclusion clauses must be restrictive.

(a) War crimes, etc.

(a) he has committed a crime against peace, a war crime or a crime against humanity, as defined in the inter‑national instruments drawn up to make provision in respect of such crimes.

150. In mentioning crimes against peace, war crimes or crimes against humanity, the Convention refers generally to “international instruments drawn up to make provision in respect of such crimes”. There are a considerable number of such instruments dating from the end of the Second World War up to the present time. All of them contain definitions of what constitute “crimes against peace, war

19 In elaborating this exclusion clause, the drafters of the Convention had principally in mind refugees of German extraction having arrived in the Federal Republic of Germany who were recognized as possessing the rights and obligations attaching to German nationality.

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crimes and crimes against humanity”. The most comprehensive definition will be found in the 1945 London Agreement and Charter of the International Military tribunal. The definitions contained in the above‑mentioned London Agreement and a list of other pertinent instruments are given in Annexes V and VI.

(b) Common crimes

(b) he has committed a serious non‑political crime outside the country of refuge prior to his admission to that country as a refugee.

151. The aim of this exclusion clause is to protect the community of a receiving country from the danger of admitting a refugee who has committed a serious common crime. It also seeks to render due justice to a refugee who has committed a common crime (or crimes) of a less serious nature or has committed a political offence.

152. In determining whether an offence is “non‑political” or is, on the contrary, a “political” crime, regard should be given in the first place to its nature and purpose i.e. whether it has been committed out of genuine political motives and not merely for personal reasons or gain. There should also be a close and direct causal link between the crime committed and its alleged political purpose and object. The political element of the offence should also outweigh its common‑law character. This would not be the case if the acts committed are grossly out of proportion to the alleged objective. The political nature of the offence is also more difficult to accept if it involves acts of an atrocious nature.

153. Only a crime committed or presumed to have been committed by an applicant “outside the country of refuge prior to his admission to that country as a refugee” is a ground for exclusion. The country outside would normally be the country of origin, but it could also be another country, except the country of refuge where the applicant seeks recognition of his refugee status.

154. A refugee committing a serious crime in the country of refuge is subject to due process of law in that country. In extreme cases, Article 33 paragraph 2 of the Convention permits a refugee’s expulsion or return to his former home country if, having been convicted by a final judgement of a “particularly serious” common crime, he constitutes a danger to the community of his country of refuge.

155. What constitutes a “serious” non‑political crime for the purposes of this exclusion clause is diffi‑cult to define, especially since the term “crime” has different connotations in different legal systems. in some countries the word “crime” denotes only offences of a serious character. In other countries it may comprise anything from petty larceny to murder. In the present context, however, a “serious” crime must be a capital crime or a very grave punishable act. Minor offences punishable by moderate sentences are not grounds for exclusion under Article 1 F (b) even if technically referred to as “crimes” in the penal law of the country concerned.

156. In applying this exclusion clause, it is also necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared. If a person has well‑founded fear of very severe persecution, e.g. persecution endangering his life or freedom, a crime must be very grave in order to exclude him. If the persecution feared is less serious, it will be necessary to have regard to the nature of the crime or crimes presumed to have been com‑mitted in order to establish whether the applicant is not in reality a fugitive from justice or whether his criminal character does not outweigh his character as a bona fide refugee.

157. In evaluating the nature of the crime presumed to have been committed, all the relevant fac‑tors – including any mitigating circumstances – must be taken into account. It is also necessary to have regard to any aggravating circumstances as, for example, the fact that the applicant may al‑ready have a criminal record. The fact that an applicant convicted of a serious non‑political crime has already served his sentence or has been granted a pardon or has benefited from an amnesty is also relevant. In the latter case, there is a presumption that the exclusion clause is no longer applicable, unless it can be shown that, despite the pardon or amnesty, the applicant’s criminal character still predominates.

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158. Considerations similar to those mentioned in the preceding paragraphs will apply when a crime – in the widest sense – has been committed as a means of, or concomitant with, escape from the country where persecution was feared. Such crimes may range from the theft of a means of loco‑motion to endangering or taking the lives of innocent people. While for the purposes of the present exclusion clause it may be possible to over‑look the fact that a refugee, not finding any other means of escape, may have crashed the border in a stolen car, decisions will be more difficult where he has hijacked an aircraft, i.e. forced its crew, under threat of arms or with actual violence, to change destination in order to bring him to a country of refuge.

159. As regards hijacking, the question has arisen as to whether, if committed in order to escape from persecution, it constitutes a serious non‑political crime within the meaning of the present exclusion clause. Governments have considered the unlawful seizure of aircraft on several oc‑casions within the framework of the United Nations, and a number of international conventions have been adopted dealing with the subject. None of these instruments mentions refugees. How‑ever, one of the reports leading to the adoption of a resolution on the subject states that “the adoption of the draft Resolution cannot prejudice any international legal rights or duties of States under instruments relating to the status of refugees and stateless persons”. Another report states that “the adoption of the draft Resolution cannot prejudice any international legal rights or duties of States with respect to asylum”.20

160. The various conventions adopted in this connexion21 deal mainly with the manner in which the perpetrators of such acts have to be treated. They invariably give Contracting States the alternative of extraditing such persons or instituting penal proceedings for the act on their own territory, which implies the right to grant asylum.

161. While there is thus a possibility of granting asylum, the gravity of the persecution of which the offender may have been in fear, and the extent to which such fear is well‑founded, will have to be duly considered in determining his possible refugee status under the 1951 Convention. The question of the exclusion under Article 1 F (b) of an applicant who has committed an unlawful seizure of an aircraft will also have to be carefully examined in each individual case.

(c) Acts contrary to the purposes and principles of the United Nations


162. It will be seen that this very generally‑worded exclusion clause overlaps with the exclusion clause in Article 1 F (a); for it is evident that a crime against peace, a war crime or a crime against humanity is also an act contrary to the purposes and principles of the United Nations. While Article 1 F (c) does not introduce any specific new element, it is intended to cover in a general way such acts against the purposes and principles of the United Nations that might not be fully covered by the two preceding exclusion clauses. Taken in conjunction with the latter, it has to be assumed, although this is not specif‑ically stated, that the acts covered by the present clause must also be of a criminal nature.

163. The purposes and principles of the United Nations are set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations. They enumerate fundamental principles that should govern the conduct of their members in relation to each other and in relation to the international community as a whole. From this it could be inferred that an individual, in order to have committed an act contrary to these principles, must have been in a position of power in a member State and instrumental to his State’s infringing these principles. However, there are hardly any precedents on record for the applica‑tion of this clause, which, due to its very general character, should be applied with caution.

20 Reports of the Sixth Committee on General Assembly resolutions 2645 (XXV). United Nations document A/8716, and 2551 (XXIV), United Nations document A/7845.21 Convention on Offences and Certain Other Acts Committed on Board Aircraft, Tokyo, 14 September 1963. Convention for the Suppression of Unlawful Seizure of Aircraft, the Hague, 16 December 1970. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Montreal, 23 September 1971.

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CHAPTER V – SPECIAL CASES

A. WAR REFUGEES

164. Persons compelled to leave their country of origin as a result of international or national armed conflicts are not normally considered refugees under the 1951 Convention or 1967 Protocol.22 They do, however, have the protection provided for in other international instruments, e.g. the Geneva Conventions of 1949 on the Protection of War Victims and the 1977 Protocol additional to the Ge‑neva Conventions of 1949 relating to the protection of Victims of International Armed Conflicts.23

165. However, foreign invasion or occupation of all or part of a country can result – and occasionally has resulted – in persecution for one or more of the reasons enumerated in the 1951 Convention. In such cases, refugee status will depend upon whether the applicant is able to show that he has a “well‑founded fear of being persecuted” in the occupied territory and, in addition, upon whether or not he is able to avail himself of the protection of his government, or of a protecting power whose duty it is to safeguard the interests of his country during the armed conflict, and whether such protec‑tion can be considered to be effective.

166. Protection may not be available if there are no diplomatic relations between the applicant’s host country and his country of origin. If the applicant’s government is itself in exile, the effectiveness of the protection that it is able to extend may be open to question. Thus, every case has to be judged on its merits, both in respect of well‑founded fear of persecution and of the availability of effective protection on the part of the government of the country of origin.

B. DESERTERS AND PERSONS AVOIDING MILITARY SERVICE

167. In countries where military service is compulsory, failure to perform this duty is frequently pun‑ishable by law. Moreover, whether military service is compulsory or not, desertion is invariably con‑sidered a criminal offence. The Penalties may vary from country to country, and are not normally regarded as persecution. Fear of prosecution and punishment for desertion or draft‑evasion does not in itself constitute well‑founded fear of persecution under the definition. Desertion or draft‑evasion does not, on the other hand, exclude a person from being a refugee, and a person may be a refugee in addition to being a deserter or draft‑evader.

168. A person is clearly not a refugee if his only reason for desertion or draft‑evasion is his dislike of military service or fear of combat. He may, however, be a refugee if his desertion or evasion of military service is concomitant with other relevant motives for leaving or remaining outside his country, or if he otherwise has reasons, within the meaning of the definition, to fear persecution.

169. A deserter or draft‑evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion. The same would apply if it can be shown that he has well‑founded fear of persecution on these grounds above and beyond the punishment for desertion.

170. There are, however, also cases where the necessity to perform military service may be the sole ground for a claim to refugee status, i.e. when a person can show that the performance of military ser‑vice would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience.

171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft‑evasion. It is not enough for a person to be in disagreement 22 In respect of Africa, however, see the definition in Article 1 (2) of the OAU Convention concerning the Specific Aspects of Refugee Problems in Africa, quoted in para. 22 above.23 See Annex VI, items (6) and (7).

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with his government regarding the political justification for a particular military action. Where, how‑ever, the type of military action, with which an individual does not wish to be associated, is con‑demned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft‑evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.

172. Refusal to perform military service may also be based on religious convictions. If an applicant is able to show that his religious convictions are genuine, and that such convictions are not taken into account by the authorities of his country in requiring him to perform military service, he may be able to establish a claim to refugee status. Such a claim would, of course, be supported by any additional indications that the applicant or his family may have encountered difficulties due to their religious convictions.

173. The question as to whether objection to performing military service for reasons of conscience can give rise to a valid claim to refugee status should also be considered in the light of more recent developments in this field. An increasing number of States have introduced legislation or adminis‑trative regulations whereby persons who can invoke genuine reasons of conscience are exempted from military service, either entirely or subject to their performing alternative (i.e. civilian) service. The introduction of such legislation or administrative regulations has also been the subject of rec‑ommendations by international agencies.24 In the light of these developments, it would be open to Contracting States, to grant refugee status to persons who object to performing military service for genuine reasons of conscience.

174. The genuineness of a person’s political, religious or moral convictions, or of his reasons of con‑science for objecting to performing military service, will of course need to be established by a thor‑ough investigation of his personality and background. The fact that he may have manifested his views prior to being called to arms, or that he may already have encountered difficulties with the authorities because of his convictions, are relevant considerations. Whether he has been drafted into compulsory service or joined the army as a volunteer may also be indicative of the genuineness of his convictions.

C. PERSONS HAVING RESORTED TO FORCE OR COMMITTED ACTS OF VIOLENCE

175. Applications for refugee status are frequently made by persons who have used force or com‑mitted acts of violence. Such conduct is frequently associated with, or claimed to be associated with, political activities or political opinions. They may be the result of individual initiatives, or may have been committed within the framework of organized groups. The latter may either be clandestine groupings or political cum military organizations that are officially recognized or whose activities are widely acknowledged.25 Account should also be taken of the fact that the use of force is an aspect of the maintenance of law and order and may – by definition – be lawfully resorted to by the police and armed forces in the exercise of their functions.

176. An application for refugee status by a person having (or presumed to have) used force, or to have committed acts of violence of whatever nature and within whatever context, must in the first place – like any other application – be examined from the standpoint of the inclusion clauses in the 1951 Convention (paragraphs 32‑110 above).

177. Where it has been determined that an applicant fulfils the inclusion criteria, the question may arise as to whether, in view of the acts involving the use of force or violence committed by him, he may not be covered by the terms of one or more of the exclusion clauses. These exclusion clauses, which figure in Article 1 F (a) to (c) of the 1951 Convention, have already been examined (paragraphs 147 to 163 above).

24 Cf Recommendation 816 (1977) on the Right of Conscientious Objection to Military Service, adopted at the Parliamentary Assembly of the Council of Europe at its Twenty‑ninth Ordinary Session (5‑13 October 1977).25 A number of liberation movements, which often include an armed wing, have been officially recognized by the General Assembly of the United Nations. Other liberation movements have only been recognized by a limited number of governments. Others again have no official recognition.

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178. The exclusion clause in Article 1 F (a) was originally intended to exclude from refugee status any person in respect of whom there were serious reasons for considering that he has “committed a crime against peace, a war crime, or a crime against humanity” in an official capacity. This exclusion clause is, however, also applicable to persons who have committed such crimes within the framework of various non‑governmental groupings, whether officially recognized, clandestine or self‑styled.

179. The exclusion clause in Article 1 F (b), which refers to “a serious non‑political crime”, is normally not relevant to the use of force or to acts of violence committed in an official capacity. The interpre‑tation of this exclusion clause has already been discussed. The exclusion clause in Article 1 F (c) has also been considered. As previously indicated, because of its vague character, it should be applied with caution.

180. It will also be recalled that, due to their nature and the serious consequences of their application to a person in fear of persecution, the exclusion clauses should be applied in a restrictive manner.

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CHAPTER VI – THE PRINCIPLE OF FAMILY UNITY181. Beginning with the Universal Declaration of Human Rights, which states that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State”, most international instruments dealing with human rights contain similar provisions for the protection of the unit of a family.

182. The Final Act of the Conference that adopted the 1951 Convention:

Recommends Governments to take the necessary measures for the protection of the refugee’s family, espe‑cially with a view to:

(1) Ensuring that the unity of the refugee’s family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country.

(2) The protection of refugees who are minors, in particular unaccompanied children and girls, with special reference to guardianship and adoption.26

183. The 1951 Convention does not incorporate the principle of family unity in the definition of the term refugee. The above‑mentioned Recommendation in the Final Act of the Conference is, however, observed by the majority of States, whether or not parties to the 1951 Convention or to the 1967 Protocol.

184. If the head of a family meets the criteria of the definition, his dependants are normally granted refugee status according to the principle of family unity. It is obvious, however, that formal refugee status should not be granted to a dependant if this is incompatible with his personal legal status. Thus, a dependant member of a refugee family may be a national of the country of asylum or of another country, and may enjoy that country’s protection. To grant him refugee status in such circumstances would not be called for.

185. As to which family members may benefit from the principle of family unity, the minimum require‑ment is the inclusion of the spouse and minor children. In practice, other dependants, such as aged parents of refugees, are normally considered if they are living in the same household. On the other hand, if the head of the family is not a refugee, there is nothing to prevent any one of his dependants, if they can invoke reasons on their own account, from applying for recognition as refugees under the 1951 Convention or the 1967 Protocol. In other words, the principle of family unity operates in favour of dependants, and not against them.

186. The principle of the unity of the family does not only operate where all family members become refugees at the same time. It applies equally to cases where a family unit has been temporarily disrupt‑ed through the flight of one or more of its members.

187. Where the unity of a refugee’s family is destroyed by divorce, separation or death, dependants who have been granted refugee status on the basis of family unity will retain such refugee status unless they fall within the terms of a cessation clause; or if they do not have reasons other than those of personal convenience for wishing to retain refugee status; or if they themselves no longer wish to be considered as refugees.

188. If the dependant of a refugee falls within the terms of one of the exclusion clauses, refugee sta‑tus should be denied to him.

26 See Annex 1.

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PART TWO PROCEDURES FOR THE DETERMINATION OF REFUGEE STATUS

A. GENERAL

189. It has been seen that the 1951 Convention and the 1967 Protocol define who is a refugee for the purposes of these instruments. It is obvious that, to enable States parties to the Convention and to the Protocol to implement their provisions, refugees have to be identified. Such identification, i.e. the determination of refugee status, although mentioned in the 1951 Convention (cf. Article 9), is not specifically regulated. In particular, the Convention does not indicate what type of procedures are to be adopted for the determination of refugee status. It is therefore left to each Contracting State to es‑tablish the procedure that it considers most appropriate, having regard to its particular constitutional and administrative structure.

190. It should be recalled that an applicant for refugee status is normally in a particularly vulnerable situation. He finds himself in an alien environment and may experience serious difficulties, technical and psychological, in submitting his case to the authorities of a foreign country, often in a language not his own. His application should therefore be examined within the framework of specially estab‑lished procedures by qualified personnel having the necessary knowledge and experience, and an understanding of an applicant’s particular difficulties and needs.

191. Due to the fact that the matter is not specifically regulated by the 1951 Convention, proce‑dures adopted by States parties to the 1951 Convention and to the 1967 Protocol vary consider‑ably. In a number of countries, refugee status is determined under formal procedures specifically established for this purpose. In other countries, the question of refugee status is considered within the framework of general procedures for the admission of aliens. In yet other countries, refugee status is determined under informal arrangements, or ad hoc for specific purposes, such as the issuance of travel documents.

192. In view of this situation and of the unlikelihood that all States bound by the 1951 Convention and the 1967 Protocol could establish identical procedures, the Executive Committee of the High Com‑missioner’s Programme, at its twenty‑eighth session in October 1977, recommended that procedures should satisfy certain basic requirements. These basic requirements, which reflect the special situa‑tion of the applicant for refugee status, to which reference has been made above, and which would ensure that the applicant is provided with certain essential guarantees, are the following:

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(i) The competent official (e.g., immigration officer or border police officer) to whom the applicant addresses himself at the border or in the territory of a Contracting State should have clear instructions for dealing with cases which might come within the purview of the relevant international instruments. He should be required to act in accordance with the principle of non‑refoulement and to refer such cases to a higher authority.

(ii) The applicant should receive the necessary guidance as to the procedure to be followed.

(iii) There should be a clearly identified authority – wherever possible a single central authority – with respon‑sibility for examining requests for refugee status and taking a decision in the first instance.

(iv) The applicant should be given the necessary facilities, including the services of a competent interpreter, for submitting his case to the authorities concerned. Applicants should also be given the opportunity, of which they should be duly informed, to contact a representative of UNHCR.

(v) If the applicant is recognized as a refugee, he should be informed accordingly and issued with documenta‑tion certifying his refugee status.

(vi) If the applicant is not recognized, he should be given a reasonable time to appeal for a formal reconsidera‑tion of the decision, either to the same or to a different authority, whether administrative or judicial, according to the prevailing system.

(vii) The applicant should be permitted to remain in the country pending a decision on his initial request by the competent authority referred to in paragraph (iii) above, unless it has been established by that authority that his request is clearly abusive. He should also be permitted to remain in the country while an appeal to a higher administrative authority or to the courts is pending.27

193. The Executive Committee also expressed the hope that all States parties to the 1951 Conven‑tion and the 1967 Protocol that had not yet done so would take appropriate steps to establish such procedures in the near future and give favourable consideration to UNHCR participation in such procedures in appropriate form.

194. Determination of refugee status, which is closely related to questions of asylum and admission, is of concern to the High Commissioner in the exercise of his function to provide international pro‑tection for refugees. In a number of countries, the Office of the High Commissioner participates in various forms, in procedures for the determination of refugee status. Such participation is based on Article 35 of the 1951 Convention and the corresponding Article 11 of the 1967 Protocol, which pro‑vide for co‑operation by the Contracting States with the High Commissioner’s Office.

B. ESTABLISHING THE FACTS

(1) Principles and methods

195. The relevant facts of the individual case will have to be furnished in the first place by the appli‑cant himself. It will then be up to the person charged with determining his status (the examiner) to assess the validity of any evidence and the credibility of the applicant’s statements.

196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.

27 Official Records of the General Assembly, Thirty second Session, Supplement No. 12 (A/32/12/Add.1), para. 53 (6) (e).

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197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported state‑ments must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.

198. A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis‑à‑vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.

199. While an initial interview should normally suffice to bring an applicant’s story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of mate‑rial facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner’s responsibility to evaluate such statements in the light of all the circumstances of the case.

200. An examination in depth of the different methods of fact‑finding is outside the scope of the present Handbook. It may be mentioned, however, that basic information is frequently given, in the first instance, by completing a standard questionnaire. Such basic information will normally not be sufficient to enable the examiner to reach a decision, and one or more personal interviews will be required. It will be necessary for the examiner to gain the confidence of the applicant in order to assist the latter in putting forward his case and in fully explaining his opinions and feelings. In creating such a climate of confidence it is, of course, of the utmost importance that the applicant’s statements will be treated as confidential and that he be so informed.

201. Very frequently the fact‑finding process will not be complete until a wide range of circumstances has been ascertained. Taking isolated incidents out of context may be misleading. The cumulative effect of the applicant’s experience must be taken into account. Where no single incident stands out above the others, sometimes a small incident may be “the last straw”; and although no single inci‑dent may be sufficient, all the incidents related by the applicant taken together, could make his fear “well‑founded” (see paragraph 53 above).

202. Since the examiner’s conclusion on the facts of the case and his personal impression of the appli‑cant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgement should not, of course, be influenced by the personal consideration that the applicant may be an “undeserving case”.

(2) Benefit of the doubt

203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of ref‑ugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.

204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.

(3) Summary

205. The process of ascertaining and evaluating the facts can therefore be summarized as follows:

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(a) The applicant should:

(i) Tell the truth and assist the examiner to the full in establishing the facts of his case.

(ii) Make an effort to support his statements by any available evidence and give a satisfactory explanation for any lack of evidence. If necessary he must make an effort to procure additional evidence.

(iii) Supply all pertinent information concerning himself and his past experience in as much detail as is neces‑sary to enable the examiner to establish the relevant facts. He should be asked to give a coherent explanation of all the reasons invoked in support of his application for refugee status and he should answer any questions put to him.

(b) The examiner should:

(i) Ensure that the applicant presents his case as fully as possible and with all available evidence.

(ii) Assess the applicant’s credibility and evaluate the evidence (if necessary giving the applicant the benefit of the doubt), in order to establish the objective and the subjective elements of the case.

(iii) Relate these elements to the relevant criteria of the 1951 Convention, in order to arrive at a correct con‑clusion as to the applicant’s refugee status.

C. CASES GIVING RISE TO SPECIAL PROBLEMS IN ESTABLISHING THE FACTS

(1) Mentally disturbed persons

206. It has been seen that in determining refugee status the subjective element of fear and the objec‑tive element of its well‑foundedness need to be established.

207. It frequently happens that an examiner is confronted with an applicant having mental or emo‑tional disturbances that impede a normal examination of his case. A mentally disturbed person may, however, be a refugee, and while his claim cannot therefore be disregarded, it will call for different techniques of examination.

208. The examiner should, in such cases, whenever possible, obtain expert medical advice. The medical report should provide information on the nature and degree of mental illness and should assess the applicant’s ability to fulfil the requirements normally expected of an applicant in present‑ing his case (see paragraph 205 (a) above). The conclusions of the medical report will determine the examiner’s further approach.

209. This approach has to vary according to the degree of the applicant’s affliction and no rigid rules can be laid down. The nature and degree of the applicant’s “fear” must also be taken into consideration, since some degree of mental disturbance is frequently found in persons who have been exposed to severe persecution. Where there are indications that the fear expressed by the ap‑plicant may not be based on actual experience or may be an exaggerated fear, it may be necessary, in arriving at a decision, to lay greater emphasis on the objective circumstances, rather than on the statements made by the applicant.

210. It will, in any event, be necessary to lighten the burden of proof normally incumbent upon the applicant, and information that cannot easily be obtained from the applicant may have to be sought elsewhere, e.g. from friends, relatives and other persons closely acquainted with the ap‑plicant, or from his guardian, if one has been appointed. It may also be necessary to draw certain conclusions from the surrounding circumstances. If, for instance, the applicant belongs to and is in the company of a group of refugees, there is a presumption that he shares their fate and qualifies in the same manner as they do.

211. In examining his application, therefore, it may not be possible to attach the same importance as is normally attached to the subjective element of “fear”, which may be less reliable, and it may be necessary to place greater emphasis on the objective situation.

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212. In view of the above considerations, investigation into the refugee status of a mentally dis‑turbed person will, as a rule, have to be more searching than in a “normal” case and will call for a close examination of the applicant’s past history and background, using whatever outside sources of information may be available.

(2) Unaccompanied minors

213. There is no special provision in the 1951 Convention regarding the refugee status of persons under age. The same definition of a refugee applies to all individuals, regardless of their age. When it is necessary to determine the refugee status of a minor, problems may arise due to the difficulty of applying the criteria of “well‑founded fear” in his case. If a minor is accompanied by one (or both) of his parents, or another family member on whom he is dependent, who requests refugee status, the minor’s own refugee status will be determined according to the principle of family unity (paragraphs 181 to 188 above).

214. The question of whether an unaccompanied minor may qualify for refugee status must be de‑termined in the first instance according to the degree of his mental development and maturity. In the case of children, it will generally be necessary to enrol the services of experts conversant with child mentality. A child – and for that matter, an adolescent – not being legally independent should, if ap‑propriate, have a guardian appointed whose task it would be to promote a decision that will be in the minor’s best interests. In the absence of parents or of a legally appointed guardian, it is for the authori‑ties to ensure that the interests of an applicant for refugee status who is a minor are fully safeguarded.

215. Where a minor is no longer a child but an adolescent, it will be easier to determine refugee status as in the case of an adult, although this again will depend upon the actual degree of the adolescent’s maturity. It can be assumed that – in the absence of indications to the contrary – a person of 16 or over may be regarded as sufficiently mature to have a well‑founded fear of persecution. Minors under 16 years of age may normally be assumed not to be sufficiently mature. They may have fear and a will of their own, but these may not have the same significance as in the case of an adult.

216. It should, however, be stressed that these are only general guidelines and that a minor’s mental maturity must normally be determined in the light of his personal, family and cultural background.

217. Where the minor has not reached a sufficient degree of maturity to make it possible to estab‑lish well‑founded fear in the same way as for an adult, it may be necessary to have greater regard to certain objective factors. Thus, if an unaccompanied minor finds himself in the company of a group of refugees, this may – depending on the circumstances – indicate that the minor is also a refugee.

218. The circumstances of the parents and other family members, including their situation in the mi‑nor’s country of origin, will have to be taken into account. If there is reason to believe that the parents wish their child to be outside the country of origin on grounds of well‑founded fear of persecution, the child himself may be presumed to have such fear.

219. If the will of the parents cannot be ascertained or if such will is in doubt or in conflict with the will of the child, then the examiner, in cooperation with the experts assisting him, will have to come to a decision as to the well‑foundedness of the minor’s fear on the basis of all the known circumstances, which may call for a liberal application of the benefit of the doubt.

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CONCLUSION220. In the present Handbook an attempt has been made to define certain guidelines that, in the ex‑perience of UNHCR, have proved useful in determining refugee status for the purposes of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. In so doing, particular atten‑tion has been paid to the definitions of the term “refugee” in these two instruments, and to various problems of interpretation arising out of these definitions. It has also been sought to show how these definitions may be applied in concrete cases and to focus attention on various procedural problems arising in regard to the determination of refugee status.

221. The Office of the High Commissioner is fully aware of the shortcomings inherent in a Hand‑book of this nature, bearing in mind that it is not possible to encompass every situation in which a person may apply for refugee status. Such situations are manifold and depend upon the infinitely varied conditions prevailing in countries of origin and on the special personal factors relating to the individual applicant.

222. The explanations given have shown that the determination of refugee status is by no means a mechanical and routine process. On the contrary, it calls for specialized knowledge, training and ex‑perience and – what is more important – an understanding of the particular situation of the applicant and of the human factors involved.

223. Within the above limits it is hoped that the present Handbook may provide some guidance to those who in their daily work are called upon to determine refugee status.

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ANNEXES

ANNEX IEXCERPT FROM THE FINAL ACT OF THE UNITED NATIONS CONFERENCE OF PLENIPOTENTIARIES ON THE STATUS OF REFUGEES AND STATELESS PERSONS28

IV

The Conference adopted unanimously the following recommendations:

A.

“THE CONFERENCE,

“Considering that the issue and recognition of travel documents is necessary to facilitate the move‑ment of refugees, and in particular their resettlement,

“Urges Governments which are parties to the Inter‑Governmental Agreement on Refugee Travel Doc‑uments signed in London 15 October 1946, or which recognize travel documents issued in accord‑ance with the Agreement, to continue to issue or to recognize such travel documents, and to extend the issue of such documents to refugees as defined in article 1 of the Convention relating to the Sta‑tus of Refugees or to recognize the travel documents so issued to such persons, until they shall have undertaken obligations under article 28 of the said Convention.”

B.

“THE CONFERENCE,

“Considering that the unity of the family, the natural and fundamental group of society, is an essential right of the refugee, and that such unity is constantly threatened, and

“Noting with satisfaction that, according to the official commentary of the ad hoc Committee on State‑lessness and Related Problems the rights granted to a refugee are extended to members of his family,

“Recommends Governments to take the necessary measure protection of the refugee’s family, espe‑cially with a view to:

“(1) Ensuring that the unity of the refugee’s family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country,

“(2) The protection of refugees who are minors, in particular unaccompanied children and girls, with special reference to guardianship and adoption.”

28 United Nations Treaty Series, vol. 189, p. 37.

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C.

“THE CONFERENCE,

“Considering that, in the moral, legal and material spheres, refugees need the help of suitable welfare services, especially that of appropriate non‑governmental organizations,

“Recommends Governments and inter‑governmental bodies to facilitate, encourage and sustain the efforts of properly qualified or organizations.”

D.

“THE CONFERENCE,

“Considering that many persons still leave their country of origin for reasons of persecution and are entitled to special protection on account of their position,

“Recommends that Governments continue to receive refugees in their territories and that they act in concert in a true spirit of international co‑operation in order that these refugees may find asylum and the possibility of resettlement.”

E.

“THE CONFERENCE,

“Expresses the hope that the Convention relating to the Status of Refugees will have value as an example exceeding its contractual scope and that all nations will be guided by it in granting so far as possible to persons in their territory as refugees and who would not be covered by the terms of the Convention, the treatment for which it provides.”

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ANNEX II1951 CONVENTION RELATING TO THE STATUS OF REFUGEES29

PREAMBLE

THE HIGH CONTRACTING PARTIES

Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination,

Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavored to assure refugees the widest possible exercise of these fundamental rights and freedoms,

Considering that it is desirable to revise and consolidate previous international agreements relating to the status of refugees and to extend the scope of and the protection accorded by such instruments by means of a new agreement,

Considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature the cannot therefore be achieved without international co‑operation,

Expressing the wish that all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States,

Noting that the United Nations High Commissioner for Refugees is charged with the task of supervis‑ing international conventions providing for the protection of Refugees, and recognizing that the ef‑fective co‑ordination of measures taken to deal with this problem will depend upon the co‑operation of States with the High Commissioner,

Have agreed as follows:

CHAPTER I – GENERAL PROVISIONS

Article 1

Definition of the term “Refugee”

A. For the purposes of the present Convention, the term “refugee” shall apply to any person who:

(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or un‑der the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization;

Decisions of non‑eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section;

29 United Nations Treaty Series, vol. 189, p. 137.

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(2) As a result of events occurring before 1 January 1951 and owing to well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or polit‑ical opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lack‑ing the protection of the country of his nationality if, without any valid reason based on well‑founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

B. (1) For the purposes of this Convention, the words “events occurring before 1 January 1951” in Article 1, Section A, shall be understood to mean either:

(a) “events occurring in Europe before 1 January 1951” or

(b) “events occurring in Europe or elsewhere before 1 January 1951”

and each Contracting State shall make a declaration at the time of signature, ratification or accession, specifying which of these meanings it applies for the purpose of its obligations under this Convention.

(2) Any Contracting State which has adopted alternative (a) may at any time extend its obligations by adopting alternative (b) by means of a notification addressed to the Secretary‑General of the United Nations.

C. This Convention shall cease to apply to any person falling under the terms of Section A if:

(1) He has voluntarily re‑availed himself of the protection of the country of his nationality; or

(2) Having lost his nationality, he has voluntarily re‑acquired it; or

(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or

(4) He has voluntarily re‑established himself in the country which he left or outside which he remained owing to fear of persecution; or


Provided that this paragraph shall not apply to a refugee falling under section A (1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality.

(6) Being a person who has no nationality he is, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;


D. This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.

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When such protection or assistance has ceased for any reason, without the position of such per‑sons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.

E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non‑political crime outside the country of refuge prior to his admission to that country as a refugee;


Article 2

General obligations

Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.

Article 3

Non‑Discrimination

The Contracting States shall apply the provisions of this Convention to refugees without discrimina‑tion as to race, religion or country of origin.

Article 4

Religion

The Contracting States shall accord to refugees within their territories treatment at least as favorable as that accorded to their nationals with respect to freedom to practice their religion and freedom as regards the religious education of their children.

Article 5

Rights granted apart from this Convention

Nothing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention.

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Article 6

The term “in the same circumstances”

For the purpose of this Convention, the term “in the same circumstances” implies that any require‑ments (including requirements as to length and conditions of sojourn or residence) which the particu‑lar individual would have to fulfil for the enjoyment of the right in question, if he were not a refugee, must be fulfilled by him, with the exception of requirements which by their nature a refugee is inca‑pable of fulfilling.

Article 7

Exemption from reciprocity

1. Except where this Convention contains more favorable provisions, a Contracting State shall accord to refugees the same treatment as is accorded to aliens generally.

2. After a period of three years’ residence, all refugees shall enjoy exemption from legislative reciproc‑ity in the territory of the Contracting States.

3. Each Contracting State shall continue to accord to refugees the rights and benefits to which they were already entitled, in the absence of reciprocity, at the date of entry into force of this Convention for that State.

4. The Contracting States shall consider favorably the possibility of according to refugees, in the ab‑sence of reciprocity, rights and benefits beyond those to which they are entitled according to para‑graphs 2 and 3, and to extending exemption from reciprocity to refugees who do not fulfil the condi‑tions provided for in paragraphs 2 and 3.

5. The provisions of paragraphs 2 and 3 apply both to the rights and benefits referred to in articles 13, 18, 19, 21 and 22 of this Convention and to rights and benefits for which this Convention does not provide.

Article 8

Exemption from exceptional measures

With regard to exceptional measures which may be taken against the person, property or interests of nationals of a foreign State, the Contracting States shall not apply such measures to a refugee who is formally a national of the said State solely on account of such nationality. Contracting States which, under their legislation, are prevented from applying the general principle expressed in this article, shall, in appropriate cases, grant exemptions in favor of such refugees.

Article 9

Provisional measures

Nothing in this Convention shall prevent a Contracting State, in time of war or other grave and ex‑ceptional circumstances, from taking provisionally measures which it considers to be essential to the national security in the case of a particular person, pending a determination by the Contracting State that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interests of national security.

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Article 10

Continuity of residence

1. Where a refugee has been forcibly displaced during the Second World War and removed to the territory of a Contracting State, and is resident there, the period of such enforced sojourn shall be considered to have been lawful residence within that territory.

2. Where a refugee has been forcibly displaced during the Second World War from the territory of a Contracting State and has, prior to the date of entry into force of this Convention, returned there for the purpose taking up residence, the period of residence before and after such enforced displacement shall be regarded as one uninterrupted period for any purposes for which uninterrupted residence is required.

Article 11

Refugee seamen

In the case of refugees regularly serving as crew members on board a ship flying the flag of a Contract‑ing State, that state shall give sympathetic consideration to their establishment on its territory and the issue of travel documents to them on their temporary admissions to its territory particularly with a view to facilitating their establishment in another country.

CHAPTER II – JURIDICAL STATUS

Article 12

Personal status

1. The personal status of a refugee shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence.

2. Rights previously acquired by a refugee and dependent on personal status, more particularly rights attaching to marriage, shall be respected by a Contracting State, subject to compliance, if this be nec‑essary, with the formalities required by the law of that State, provided that the right in question is one which would have been recognized by the law of that State had he not become a refugee.

Article 13

Movable and immovable property

The Contracting States shall accord to a refugee treatment as favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances as regards the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property.

Article 14

Artistic rights and industrial property

In respect of the protection of industrial property, such as inventions, designs or models, trade marks, trade names, and of rights in literary, artistic and scientific works, a refugee shall be accorded in the

55

country in which he has his habitual residence the same protection as is accorded to nationals of that country. In the territory of any other Contracting State, he shall be accorded the same protection as is accorded in that territory to nationals of the country in which he has habitual residence.

Article 15

Right of association

As regards non‑political and non‑profit‑making associations and trade unions the Contracting States shall accord to refugees lawfully staying in their territory the most favorable treatment accorded to nationals of a foreign country, in the same circumstances.

Article 16

Access to courts

1. A refugee shall have free access to the courts of law on the territory of all Contracting States.

2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the Courts, including legal assistance and exemption from cautio judicatum solvi.

3. A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has his habitual residence the treatment granted to a national of the country of his habitual residence.

CHAPTER III – GAINFUL EMPLOYMENT

Article 17

Wage‑earning employment

1. The Contracting State shall accord to refugees lawfully staying in their territory the most favorable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage‑earning employment.

2. In any case, restrictive measures imposed on aliens or the employment of aliens for the protection of the national labour market shall not be applied to a refugee who was already exempt from them at the date of entry into force of this Convention for the Contracting States concerned, or who fulfills one of the following conditions:

(a) He has completed three years residence in the country;

(b) He has a spouse possessing the nationality of the country of residence. A refugee may not invoke the benefits of this provision if he has abandoned his spouse;

(c) He has one or more children possessing the nationality of the country of residence.

3. The Contracting States shall give sympathetic consideration to assimilating the rights of all ref‑ugees with regard to wage‑earning employment to those of nationals, and in particular of those refugees who have entered their territory pursuant to programmes of labour recruitment or under immigration schemes.

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Article 18

Self‑employment

The Contracting States shall accord to a refugee lawfully in their territory treatment as favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same cir‑cumstances, as regards the right to engage on his own account in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies.

Article 19

Liberal professions

1. Each Contracting State shall accord to refugees lawfully staying in their territory who hold diplomas recognized by the competent authorities of that State, and who are desirous of practising a liberal profession, treatment as favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances.

2. The Contracting States shall use their best endeavours consistently with their laws and constitu‑tions to secure the settlement of such refugees in the territories, other than the metropolitan territo‑ry, for whose international relations they are responsible.

CHAPTER IV – WELFARE

Article 20

Rationing

Where a rationing system exists, which applies to the population at large and regulates the general distribution of products in short supply, refugees shall be accorded the same treatment as nationals.

Article 21

Housing

As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their ter‑ritory treatment as favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances.

Article 22

Public education

1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.

2. The Contracting States shall accord to refugees treatment as favorable as possible, and, in any event, not less favorable than that accorded to aliens generally in the same circumstances, with re‑spect to education other than elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships.

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Article 23

Public relief

The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.

Article 24

Labour legislation and social security

1. The Contracting States shall accord to refugees lawfully staying in their territory the same treat‑ment as is accorded to nationals in respect of the following matters:

(a) In so far as such matters are governed by laws or regulations or are subject to the control of admin‑istrative authorities: remuneration, including family allowances where these form part of remunera‑tion, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age of employment, apprenticeship and training, women’s work and the work of young persons, and the enjoyment of the benefits of collective bargaining;

(b) Social security (legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations:

(i) There may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition;

(ii) National laws or regulations of the country of residence may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfil the contribution conditions prescribed for the award of a normal pension.

2. The right to compensation for the death of a refugee resulting from employment injury or from occupational disease shall not be affected by the fact that the residence of the beneficiary is outside the territory of the Contracting State.

3. The Contracting States shall extend to refugees the benefits of agreements concluded between them, or which may be concluded between them in the future, concerning the maintenance of ac‑quired rights and rights in the process of acquisition in regard to social security, subject only to the conditions which apply to nationals of the States signatory to the agreements in question.

4. The Contracting States will give sympathetic consideration to extending to refugees so far as pos‑sible the benefits of similar agreements which may at any time be in force between such Contracting States and non‑contracting States.

CHAPTER V – ADMINISTRATIVE MEASURES

Article 25

Administrative assistance

1. When the exercise of a right by a refugee would normally require the assistance of authorities of a foreign country to whom he cannot have recourse, the Contracting States in whose territory he is residing shall arrange that such assistance be afforded to him by their own authorities or by an international authority.

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2. The authority or authorities mentioned in paragraph 1 shall deliver or cause to be delivered under their supervision to refugees such documents or certifications as would normally be delivered to al‑iens by or through their national authorities.

3. Documents or certifications so delivered shall stand in the stead of the official instruments deliv‑ered to aliens by or through their national authorities, and shall be given credence in the absence of proof to the contrary.

4. Subject to such exceptional treatment as may be granted to indigent persons, fees may be charged for the services mentioned herein, but such fees shall be moderate and commensurate with those charged to nationals for similar services.

5. The provisions of this article shall be without prejudice to articles 27 and 28.

Article 26

Freedom of movement

Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.

Article 27

Identity papers

The Contracting States shall issue identity papers to any refugee in their territory who does not pos‑sess a valid travel document.

Article 28

Travel documents

1. The Contracting States shall issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory unless compelling reasons of national security or public order otherwise require, and the provisions of the Schedule to this Convention shall apply with respect to such document. The Contracting States may issue such a travel document to any other refugee in their territory; they shall in particular give sympathetic consideration to the issue of such a travel document to refugees in their territory who are unable to obtain a travel document from the country of their lawful residence.

2. Travel documents issued to refugees under previous international agreements by parties thereto shall be recognized and treated by the Contracting States in the same way as if they had been issued pursuant to this article.

Article 29

Fiscal charges

1. The Contracting States shall not impose upon refugees duties, charges or taxes, of any descrip‑tion whatsoever, other or higher than those which are or may be levied on their nationals in similar situations.

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2. Nothing in the above paragraph shall prevent the application to refugees of the laws and regu‑lations concerning charges in respect of the issue to aliens of administrative documents including identity papers.

Article 30

Transfer of assets

1. A Contracting State shall, in conformity with its laws and regulations permit refugees to transfer assets which they have brought into its territory, to another country where they have been admitted for the purposes of resettlement.

2. A Contracting State shall give sympathetic consideration to the application of refugees for per‑mission to transfer assets wherever they may be and which are necessary for their resettlement in another country to which they have been admitted.

Article 31

Refugees unlawfully in the country of refuge

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.

Article 32

Expulsion

1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of na‑tional security or public order.

2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.

3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.

Article 33

Prohibition of expulsion or return (“refoulement”)

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

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2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

Article 34

Naturalization

The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and cost of such proceedings.

CHAPTER VI – EXECUTORY AND TRANSITORY PROVISIONS

Article 35

Co‑operation of the national authorities with the United Nations

1. The Contracting States undertake to co‑operate with the Office of the United Nations High Com‑missioner for Refugees, or any other agency of the United Nations which may succeed it, in the ex‑ercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.

2. In order to enable the Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the Contract‑ing States undertake to provide them in the appropriate form with information and statistical data requested concerning:

(a) the condition of refugees,

(b) the implementation of this Convention, and

(c) laws, regulations and decrees which are, or may hereafter be, in force relating to refugees.

Article 36

Information on national legislation

The Contracting States shall communicate to the Secretary‑General of the United Nations the laws and regulations which they may adopt to ensure the application of this Convention.

Article 37

Relation to previous conventions

Without prejudice to article 28, Paragraph 2, of this Convention, this Convention replaces, as be‑tween parties to it, the Arrangements of 5 July 1922, 31 May 1924, 12 May 1926, 30 June 1928 and 30 July 1935, the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 and the Agreement of 15 October 1946.

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CHAPTER VII – FINAL CLAUSES

Article 38

Settlement of disputes

Any dispute between parties to this Convention relating to its interpretation or application, which cannot be settled by other means, shall be referred to the International Court of Justice at the request of any one of the parties to the dispute.

Article 39

Signature, ratification and accession

1. This Convention shall be opened for signature at Geneva on 28 July 1951 shall thereafter be depos‑ited with the Secretary‑General of the United Nations. It shall be open for signature at the European office of the United Nations from 28 July to 31 August 1951 and shall be reopened for signature at the Headquarters of the United Nations from 17 September 1951 to 31 December 1952.

2. This Convention shall be open for signature on behalf of all States members of the United Nations and also on behalf of any other State invited to attend the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons or to which an invitation to sign will have been addressed by the General Assembly. It shall be ratified and the instruments of ratification shall be deposited with the Secretary‑General of the United Nations.

3. This Convention shall be open from 28 July 1951 for accession by the States referred to in para‑graph 2 of this Article. Accession shall be effected by the deposit of an instrument of accession with the Secretary‑General of the United Nations.

Article 40

Territorial application clause

1. Any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible. Such a declaration shall take effect when the Convention enters into force for the States concerned.

2. At any time thereafter any such extension shall be made by notification addressed to the Secre‑tary‑General of the United Nations and shall take effect as from the ninetieth day after the day of receipt by the Secretary‑General of the United Nations of this notification, or as from the date of entry into force of the Convention for the State concerned, whichever is the later.

3. With respect to those territories to which this Convention is not extended at the time of signature, ratification or accession, each State concerned shall consider the possibility of taking the necessary steps in order to extend the application of this Convention to such territories, subject where neces‑sary for constitutional reasons, to the consent of the governments of such territories.

Article 41

Federal clause

In the case of a Federal or non‑unitary State, the following provisions shall apply:

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(a) With respect to those articles of this Convention that come within the legislative jurisdiction of the federal legislative authority, the obligations of the Federal Government shall to this extent be the same as those of Parties which are not Federal States,

(b) With respect to those articles of this Convention that come within the legislative jurisdiction of constituent States, provinces or cantons which are not, under the constitutional system of the feder‑ation, bound to take legislative action, the Federal Government shall bring such articles with a favora‑ble recommendation, to the notice of the appropriate authorities of States, provinces or cantons at the earliest possible moment.

(c) A Federal State Party to this Convention shall, at the request of any other Contracting State trans‑mitted through the Secretary‑General of the United Nations, supply a statement of the law and prac‑tice of the Federation and its constituent units in regard to any particular provision of the Convention showing the extent to which effect has been given to that provision by legislative or other action.

Article 42

Reservations

1. At the time of signature, ratification or accession, any State may make reservations to articles of the Convention other than to articles 1, 3, 4, 16 (1), 33, 36 to 46 inclusive.

2. Any State making a reservation in accordance with paragraph 1 of this article may at any time withdraw the reservation by a communication to that effect addressed to the Secretary‑General of the United Nations.

Article 43

Entry into force

1. This Convention shall come into force on the ninetieth day following the day of deposit of the sixth instrument of ratification or accession.

2. For each State ratifying or acceding to the Convention after the deposit of the sixth instrument of ratification or accession, the Convention shall enter into force on the ninetieth day following the day of deposit by such State of its instrument of ratification or accession.

Article 44

Denunciation

1. Any Contracting State may denounce this Convention at any time by a notification addressed to the Secretary‑General of the United Nations.

2. Such denunciation shall take effect for the Contracting State concerned one year from the date upon which it is received by the Secretary‑General of the United Nations.

3. Any State which has made a declaration or notification under article 40 may, at any time there‑after, by a notification to the Secretary‑General of the United Nations, declare that the Convention shall cease to extend to such territory one year after the date of receipt of the notification by the Secretary‑General.

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Article 45

Revision

1. Any Contracting State may request revision of this Convention at any time by a notification ad‑dressed to the Secretary‑General of the United Nations.

2. The General Assembly of the United Nations shall recommend the steps, if any, to be taken in re‑spect of such request.

Article 46

Notifications by the Secretary‑General of the United Nations

The Secretary‑General of the United Nations shall inform all Members of the United Nations and non‑member States referred to in article 39:

(a) of declarations and notifications in accordance with Section B of Article 1;

(b) of signatures, ratifications and accessions in accordance with article 39;

(c) of declarations and notifications in accordance with article 40;

(d) of reservations and withdrawals in accordance with article 42;

(e) of the date on which this Convention will come into force in accordance with article 43;

(f) of denunciations and notifications in accordance with article 44;

(g) of requests for revision in accordance with article 45.

In faith whereof the undersigned, duly authorized, have signed this Convention on behalf of their re‑spective Governments,

Done at Geneva, this twenty‑eighth day of July, one thousand nine hundred and fifty‑one, in a single copy, of which the English and French texts are equally authentic and which shall remain deposited in the archives of the United Nations, and certified true copies of which shall be delivered to all Mem‑bers of the United Nations and to the non‑member States referred to in article 39.

SCHEDULE

Paragraph 1

1. The travel document referred to in article 28 of this Convention shall be similar to the specimen annexed hereto.

2. The document shall be made out in at least two languages, one of which shall be in English or French.

Paragraph 2

Subject to the regulations obtaining in the country of issue, children may be included in the travel document of a parent or, in exceptional circumstances, of another adult refugee.

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Paragraph 3

The fees charged for issue of the document shall not exceed the lowest scale of charges for national passports.

Paragraph 4

Save in special or exceptional cases, the document shall be made valid for the largest possible number of countries.

Paragraph 5

The document shall have a validity of either one or two years, at the discretion of the issuing authority.

Paragraph 6

1. The renewal or extension of the validity of the document is a matter for the authority which issued it, so long as the holder has not established lawful residence in another territory and resides lawfully in the territory of the said authority. The issue of a new document is, under the same conditions, a matter for the authority which issued the former document.

2. Diplomatic or consular authorities, specially authorized for the purpose, shall be empowered to extend, for a period not exceeding six months, the validity of travel documents issued by the Govern‑ments.

3. The Contracting States shall give sympathetic consideration to renewing or extending the validity of travel documents or issuing new documents to refugees no longer lawfully resident in their territory who are unable to obtain a travel document from the country of their lawful residence.

Paragraph 7

The Contracting States shall recognize the validity of the documents issued in accordance with the provisions of article 28 of this Convention.

Paragraph 8

The competent authorities of the country to which the refugee desires to proceed shall, if they are prepared to admit him and if a visa is required, affix a visa on the document of which he is the holder.

Paragraph 9

1. The Contracting States undertake to issue transit visas to refugees who have obtained visas for a territory of final destination.

2. The issue of such visas may be refused on grounds which would justify refusal of a visa to any alien.

Paragraph 10

The fees for the issue of exit, entry or transit visas shall not exceed the lowest scale of charges for visas on foreign passports.

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Paragraph 11

When a refugee has lawfully taken up residence in the territory of another Contracting State, the responsibility for the issue of a new document, under the terms and conditions of article 28, shall be that of the competent authority of that territory, to which the refugee shall be entitled to apply.

Paragraph 12

The authority issuing a new document shall withdraw the old document and shall return it to the country of issue, if it is stated in the document that it should be so returned; otherwise it shall with‑draw and cancel the document.

Paragraph 13

1. Each Contracting State undertakes that the holder of a travel document issued by it in accordance with article 28 of this Convention shall be readmitted to its territory at any time during the period of its validity.

2. Subject to the provisions of the preceding sub‑paragraph, a Contracting State may require the holder of the document to comply with such formalities as may be prescribed in regard to exit from or return to its territory.

3. The Contracting States reserve the right, in exceptional cases, or in cases where the refugee’s stay is authorized for a specific period, when issuing the document, to limit the period during which the refugee may return to a period of not less than three months.

Paragraph 14

Subject only to the terms of paragraph 13, the provisions of this Schedule in no way affect the laws and regulations governing the conditions of admission to, transit through, residence and establish‑ment in, and departure from, the territories of the Contracting States.

Paragraph 15

Neither the issue of the document nor the entries made thereon determine or affect the status of the holder, particularly as regards nationality.

Paragraph 16

The issue of the document does not in any way entitle the holder to the protection of the diplomatic or consular authorities of the country of issue, and does not confer on these authorities a right of protection.

ANNEX – SPECIMEN TRAVEL DOCUMENT

[not reproduced here]

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ANNEX III1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES30

The States Parties to the present Protocol,

Considering that the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (hereinafter referred to as the Convention) covers only those persons who have become refugees as a result of events occurring before 1 January 1951,

Considering that new refugee situations have arisen since the Convention was adopted and that the refugees concerned may therefore not fall within the scope of the Convention,

Considering that it is desirable that equal status should be enjoyed by all refugees covered by the defi‑nition in the Convention irrespective of the dateline 1 January 1951,

Have agreed as follows:

Article I

General provision

1. The States Parties to the present Protocol undertake to apply articles 2 to 34 inclusive of the Con‑vention to refugees as hereinafter defined.

2. For the purpose of the present Protocol, the term “refugee” shall, except as regards the application of paragraph 3 of this article, mean any person within the definition of article 1 of the Convention as if the words “As a result of events occurring before 1 January 1951 and...” and the words “... as a result of such events”, in article 1 A (2) were omitted.

3. The present Protocol shall be applied by the States Parties hereto without any geographic limita‑tion, save that existing declarations made by States already Parties to the Convention in accordance with article 1 B (1) (a) of the Convention, shall, unless extended under article 1 B (2) thereof, apply also under the present Protocol.

Article II

Co‑operation of the national authorities with the United Nations

1. The States Parties to the present Protocol undertake to co‑operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of the present Protocol.

2. In order to enable the Office of the High Commissioner, or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the States Parties to the present Protocol undertake to provide them with the information and statistical data requested, in the appropriate form, concerning:

(a) The condition of refugees;

30 United Nations, Treaty Series, vol 606, p. 267.

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(b) The implementation of the present Protocol;

(c) Laws, regulations and decrees which are, or may hereafter be, in force relating to refugees.

Article III

Information on national legislation

The States Parties to the present Protocol shall communicate to the Secretary‑General of the Unit‑ed Nations the laws and regulations which they may adopt to ensure the application of the present Protocol.

Article IV

Settlement of disputes

Any dispute between States Parties to the present Protocol which relates to its interpretation or ap‑plication and which cannot be settled by other means shall be referred to the International Court of Justice at the request of any one of the parties to the dispute.

Article V

Accession

The present Protocol shall be open for accession on behalf of all States Parties to the Convention and of any other State Member of the United Nations or member of any of the specialized agencies or to which an invitation to accede may have been addressed by the General Assembly of the United Nations. Accession shall be effected by the deposit of an instrument of accession with the Secre‑tary‑General of the United Nations.

Article VI

Federal clause

In the case of a Federal or non‑unitary State, the following provisions shall apply:

(a) With respect to those articles of the Convention to be applied in accordance with article I, para‑graph 1, of the present Protocol that come within the legislative jurisdiction of the federal legislative authority, the obligations of the Federal Government shall to this extent be the same as those of States Parties which are not Federal States;

(b) With respect to those articles of the Convention to be applied in accordance with article I, par‑agraph 1, of the present Protocol that come within the legislative jurisdiction of constituent States, provinces or cantons which are not, under the constitutional system of the federation, bound to take legislative action, the Federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of States, provinces or cantons at the earliest possible moment;

(c) A Federal State Party to the present Protocol shall, at the request of any other State Party hereto transmitted through the Secretary General of the United Nations, supply a statement of the law and practice of the Federation and its constituent units in regard to any particular provision of the Con‑vention to be applied in accordance with article 1, paragraph 1, of the present Protocol, showing the extent to which effect has been given to that provision by legislative or other action.

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Article VII

Reservations and Declarations

1. At the time of accession, any State may make reservations in respect of article IV of the present Protocol and in respect of the application in accordance with article I of the present Protocol of any provisions of the Convention other than those contained in articles 1, 3, 4, 16 (1) and 33 thereof, provided that in the case of a State Party to the Convention reservations made under this article shall not extend to refugees in respect of whom the Convention applies.

2. Reservations made by States Parties to the Convention in accordance with article 42 thereof shall, unless withdrawn, be applicable in relation to their obligations under the present Protocol.

3. Any State making a reservation in accordance with paragraph 1 of this article may at any time with‑draw such reservation by a communication to that effect addressed to the Secretary‑General of the United Nations.

4. Declarations made under article 40, paragraphs 1 and 2, of the Convention by a State Party thereto which accedes to the present Protocol shall be deemed to apply in respect of the present Protocol, unless upon accession a notification to the contrary is addressed by the State Party concerned to the Secretary‑General of the United Nations. The provisions of article 40, paragraphs 2 and 3, and of article 44, paragraph 3, of the Convention shall be deemed to apply mutatis mutandis to the present Protocol.

Article VIII

Entry into force

1. The present Protocol shall come into force on the day of deposit of the sixth instrument of acces‑sion.

2. For each State acceding to the Protocol after the deposit of the sixth instrument of accession, the Protocol shall come into force on the date of deposit by such State of its instrument of accession.

Article IX

Denunciation

1. Any State Party hereto may denounce this Protocol at any time by a notification addressed to the Secretary‑General of the United Nations.

2. Such denunciation shall take effect for the State Party concerned one year from the date on which it is received by the Secretary‑General of the United Nations.

Article X

Notifications by the Secretary‑General of the United Nations

The Secretary‑General of the United Nations shall inform the States referred to in article V above of the date of entry into force, accessions, reservations and withdrawals of reservations to and denunci‑ations of the present Protocol, and of declarations and notifications relating hereto.

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Article XI

Deposit in the Archives of the Secretariat of the United Nations

A copy of the present Protocol, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, signed by the President of the General Assembly and by the Secretary‑General of the United Nations, shall be deposited in the archives of the Secretariat of the United Nations. The Secretary‑General will transmit certified copies thereof to all States Members of the United Nations and to the other States referred to in article V above.

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ANNEX IVLIST OF STATES PARTIES TO THE 1951 CONVENTION RELATING TO THE STATUS OF REFUGEES AND THE 1967 PROTOCOL

Date of entry into force:22 April 1954 (Convention)4 October 1967 (Protocol)

As of 10 December 2018

Total number of States Parties to the 1951 Convention: 146Total number of States Parties to the 1967 Protocol: 147States Parties to both the Convention and Protocol: 144States Parties to one or both of these instruments: 149

States Parties to the 1951 Convention only:

Madagascar and Saint Kitts and Nevis

States Parties to the 1967 Protocol only:

Cape Verde, United States of America, Venezuela

The dates indicated are the dates of deposit of the instrument of ratification or accession by the re‑spective States Parties with the Secretary‑General of the United Nations in New York. In accordance with article 43(2), the Convention enters into force on the ninetieth day after the date of deposit. The Protocol enters into force on the date of deposit (article VIII (2)). Exceptions are indicated below.

Country31 Convention ProtocolAfghanistan 30 Aug 2005 a 30 Aug 2005 aAlbania 18 Aug 1992 a 18 Aug 1992 aAlgeria 21 Feb 1963 d 08 Nov 1967 aAngola 23 Jun 1981 a 23 Jun 1981 aAntigua and Barbuda 07 Sep 1995 a 07 Sep 1995 aArgentina 15 Nov 1961 a 06 Dec 1967 aArmenia 06 Jul 1993 a 06 Jul 1993 aAustralia 22 Jan 1954 a 13 Dec 1973 aAustria 01 Nov 1954 r 05 Sep 1973 aAzerbaijan 12 Feb 1993 a 12 Feb 1993 aBahamas 15 Sep 1993 a 15 Sep 1993 aBelarus 23 Aug 2001 a 23 Aug 2001 aBelgium 22 Jul 1953 r 08 Apr 1969 aBelize 27 Jun 1990 a 27 Jun 1990 aBenin 04 Apr 1962 d 06 Jul 1970 aBolivia, Plurinational State of 09 Feb 1982 a 09 Feb 1982 aBosnia and Herzegovina 01 Sep 1993 d 01 Sep 1993 dBotswana 06 Jan 1969 a 06 Jan 1969 aBrazil 16 Nov 1960 r 07 Apr 1972 aBulgaria 12 May 1993 a 12 May 1993 a31 Notes: * Ratification (r), Accession (a), Succession (d). ** (C) denotes States Parties to the 1951 Convention only; (P) denotes States Parties to the 1967 Protocol only.

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Country Convention ProtocolBurkina Faso 18 Jun 1980 a 18 Jun 1980 aBurundi 19 Jul 1963 a 15 Mar 1971 aCambodia 15 Oct 1992 a 15 Oct 1992 aCameroon 23 Oct 1961 d 19 Sep 1967 aCanada 04 Jun 1969 a 04 Jun 1969 aCape Verde (P) 09 Jul 1987 aCentral African Republic 04 Sep 1962 d 30 Aug 1967 aChad 19 Aug 1981 a 19 Aug 1981 aChile 28 Jan 1972 a 27 Apr 1972 aChina 24 Sep 1982 a 24 Sep 1982 aColombia 10 Oct 1961 r 04 Mar 1980 aCongo 15 Oct 1962 d 10 Jul 1970 aCongo, Democratic Republic of 19 July 1965 a 13 Jan 1975 aCosta Rica 28 Mar 1978 a 28 Mar 1978 aCôte d’Ivoire 08 Dec 1961 d 16 Feb 1970 aCroatia 12 Oct 1992 d 12 Oct 1992 dCyprus 16 May 1963 d 09 Jul 1968 aCzech Republic 11 May 1993 d 11 May 1993 dDenmark 04 Dec 1952 r 29 Jan 1968 aDjibouti 09 Aug 1977 d 09 Aug 1977 dDominica 17 Feb 1994 a 17 Feb 1994 aDominican Republic 04 Jan 1978 a 04 Jan 1978 aEcuador 17 Aug 1955 a 06 Mar 1969 aEgypt 22 May 1981 a 22 May 1981 aEl Salvador 28 Apr 1983 a 28 Apr 1983 aEquatorial Guinea 07 Feb 1986 a 07 Feb 1986 aEstonia 10 Apr 1997 a 10 Apr 1997 aEthiopia 10 Nov 1969 a 10 Nov 1969 aFiji 12 Jun 1972 d 12 Jun 1972 dFinland 10 Oct 1968 a 10 Oct 1968 aFrance 23 Jun 1954 r 03 Feb 1971 aGabon 27 Apr 1964 a 28 Aug 1973 aGambia 07 Sep 1966 d 29 Sep 1967 aGeorgia 09 Aug 1999 a 09 Aug 1999 aGermany 01 Dec 1953 r 05 Nov 1969 aGhana 18 Mar 1963 a 30 Aug 1968 aGreece 05 Apr 1960 r 07 Aug 1968 aGuatemala 22 Sep 1983 a 22 Sep 1983 aGuinea 28 Dec 1965 d 16 May 1968 aGuinea‑Bissau 11 Feb 1976 a 11 Feb 1976 aHaiti 25 Sep 1984 a 25 Sep 1984 aHoly See 15 Mar 1956 r 08 Jun 1967 aHonduras 23 Mar 1992 a 23 Mar 1992 aHungary 14 Mar 1989 a 14 Mar 1989 aIceland 30 Nov 1955 a 26 Apr 1968 aIran, Islamic Republic of 28 Jul 1976 a 28 Jul 1976 aIreland 29 Nov 1956 a 06 Nov 1968 aIsrael 01 Oct 1954 r 14 Jun 1968 aItaly 15 Nov 1954 r 26 Jan 1972 aJamaica 30 Jul 1964 d 30 Oct 1980 aJapan 03 Oct 1981 a 01 Jan 1982 aKazakhstan 15 Jan 1999 a 15 Jan 1999 aKenya 16 May 1966 a 13 Nov 1981 aKyrgyzstan 08 Oct 1996 a 08 Oct 1996 aKorea, Republic of 03 Dec 1992 a 03 Dec 1992 aLatvia 31 Jul 1997 a 31 Jul 1997 a

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Country Convention ProtocolLesotho 14 May 1981 a 14 May 1981 aLiberia 15 Oct 1964 a 27 Feb 1980 aLiechtenstein 08 Mar 1957 r 20 May 1968 aLithuania 28 Apr 1997 a 28 Apr 1997 aLuxembourg 23 Jul 1953 r 22 Apr 1971 aMacedonia, The Former Yugoslav Republic of 18 Jan 1994 d 18 Jan 1994 dMadagascar (C) 18 Dec 1967 aMalawi 10 Dec 1987 a 10 Dec 1987 aMali 02 Feb 1973 d 02 Feb 1973 aMalta 17 Jun 1971 a 15 Sep 1971 aMauritania 05 May 1987 a 05 May 1987 aMexico 07 June 2000 a 07 June 2000 aMoldova, Republic of 31 Jan 2002 a 31 Jan 2002 aMonaco 18 May 1954 a 16 June 2010 aMontenegro 10 Oct 2006 d 10 Oct 2006 dMorocco 07 Nov 1956 d 20 Apr 1971 aMozambique 16 Dec 1983 a 01 May 1989 aNamibia 17 Feb 1995 a 17 Feb 1995 aNauru 28 June 2011 a 28 June 2011 aNetherlands 03 May 1956 r 29 Nov 1968 aNew Zealand 30 Jun 1960 a 06 Aug 1973 aNicaragua 28 Mar 1980 a 28 Mar 1980 aNiger 25 Aug 1961 d 02 Feb 1970 aNigeria 23 Oct 1967 a 02 May 1968 aNorway 23 Mar 1953 r 28 Nov 1967 aPanama 02 Aug 1978 a 02 Aug 1978 aPapua New Guinea 17 Jul 1986 a 17 Jul 1986 aParaguay 01 Apr 1970 a 01 Apr 1970 aPeru 21 Dec 1964 a 15 Sep 1983 aPhilippines 22 Jul 1981 a 22 Jul 1981 aPoland 27 Sep 1991 a 27 Sep 1991 aPortugal 22 Dec 1960 a 13 Jul 1976 aRomania 07 Aug 1991 a 07 Aug 1991 aRussian Federation 02 Feb 1993 a 02 Feb 1993 aRwanda 03 Jan 1980 a 03 Jan 1980 aSaint Kitts and Nevis (C) 01 Feb 2002 aSaint Vincent and the Grenadines 03 Nov 1993 a 03 Nov 2003 aSamoa 21 Sep 1988 a 29 Nov 1994 aSao Tome and Principe 01 Feb 1978 a 01 Feb 1978 aSenegal 02 May 1963 d 03 Oct 1967 aSerbia 12 Mar 2001 d 12 Mar 2001 dSeychelles 23 Apr 1980 a 23 Apr 1980 aSierra Leone 22 May 1981 a 22 May 1981 aSlovakia 04 Feb 1993 d 04 Feb 1993 dSlovenia 06 Jul 1992 d 06 Jul 1992 dSolomon Islands 28 Feb 1995 a 12 Apr 1995 aSomalia 10 Oct 1978 a 10 Oct 1978 aSouth Africa 12 Jan 1996 a 12 Jan 1996 aSouth Sudan 10 Dec 2018 a 10 Dec 2018 aSpain 14 Aug 1978 a 14 Aug 1978 aSudan 22 Feb 1974 a 23 May 1974 aSuriname 29 Nov 1978 d 29 Nov 1978 dSwaziland 14 Feb 2000 a 28 Jan 1969 aSweden 26 Oct 1954 r 04 Oct 1967 aSwitzerland 21 Jan 1955 r 20 May 1968 a

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Country Convention ProtocolTajikistan 07 Dec 1993 a 07 Dec 1993 aTanzania, United Republic of 12 May 1964 a 04 Sep 1968 aTimor‑Leste 07 May 2003 a 07 May 2003 aTogo 27 Feb 1962 d 01 Dec 1969 aTrinidad and Tobago 10 Nov 2000 a 10 Nov 2000 aTunisia 24 Oct 1957 d 16 Oct 1968 aTurkey 30 Mar 1962 r 31 Jul 1968 aTurkmenistan 02 Mar 1998 a 02 Mar 1998 aTuvalu 07 Mar 1986 d 07 Mar 1986 dUganda 27 Sep 1976 a 27 Sep 1976 aUkraine 10 Jun 2002 a 04 Apr 2002 aUnited Kingdom of Great Britain and Northern Ireland 11 Mar 1954 r 04 Sep 1968 aUnited States of America (P) 01 Nov 1968 aUruguay 22 Sep 1970 a 22 Sep 1970 aVenezuela, Bolivarian Republic of (P) 19 Sep 1986 aYemen 18 Jan 1980 a 18 Jan 1980 aZambia 24 Sep 1969 d 24 Sep 1969 aZimbabwe 25 Aug 1981 a 25 Aug 1981 a

Limitations:

Article 1 B(1) of the 1951 Convention provides: “For the purposes of this Convention, the words ‘events occurring before 1 January 1951’ in article 1, Section A, shall be understood to mean either (a) ‘events occurring in Europe before 1 January 1951’; or (b) ‘events occurring in Europe or elsewhere before 1 January 1951’, and each Contracting State shall make a declaration at the time of signature, ratification or accession, specifying which of these meanings it applies for the purposes of its obliga‑tions under this Convention.”

The following States adopted alternative (a), the geographical limitation: Congo, Madagascar, Monaco and Turkey. Turkey expressly maintained its declaration of geographical limitation upon acceding to the 1967 Protocol. Madagascar has not yet acceded to the Protocol.

All other States Parties ratified, acceded or succeeded to the Convention without a geographical limitation by selecting option (b), ‘events occurring in Europe or elsewhere before 1 January 1951’.

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ANNEX VEXCERPT FROM THE CHARTER OF THE INTERNATIONAL MILITARY TRIBUNAL32

Article 6

“The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and pun‑ishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organisations, committed any of the following crimes.

“The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(a) Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a com‑mon plan or conspiracy for the accomplishment of any of the foregoing;

(b) War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill‑treatment or deportation to slave labour or for any other purpose, of civilian population of or in occupied territory, murder or ill‑treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war; or persecu‑tions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

“Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”

32 See “The Charter and Judgment of the Nürnberg Tribunal: History and Analysis” Appendix II – United Nations General Assembly‑International Law Com‑mission 1949 (A/CN.4/5 of 3 March 1949).

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ANNEX VIINTERNATIONAL INSTRUMENTS RELATING TO ARTICLE 1 F(A) OF THE 1951 CONVENTION

The main international instruments which pertain to Article 1 F (a) of the 1951 Convention are as follows:

(1) The London Agreement of 8 August 1945 and Charter of the International Military Tribunal;

(2) Law No. 10 of the Control Council for Germany of 20 December 1945 for the Punishment of Persons Guilty of War Crimes, Crimes against Peace and Crimes against Humanity;

(3) United Nations General Assembly Resolution 3 (1) of 13 February 1946 and 95 (1) of 11 De‑cember 1946 which confirm war crimes and crimes against humanity as they are defined in the Charter of the International Military Tribunal of 8 August 1945;

(4) Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 (Article III); (entered into force 12 January 1951);

(5) Geneva Conventions for the protection of victims of war of 12 August 1949 (Convention I for the protection of the wounded, and sick, Articles 3 and 50; Convention II for the protection of wounded, sick and shipwrecked, Articles 3 and 51; Convention III relative to the treatment of prisoners of war, Articles 3 and 130; Convention IV relative to the protection of civilian persons, Articles 3 and 147);

(6) Convention of the Non‑Applicability of Statutory Limitations of War Crimes and Crimes against Humanity of 26 November 1968 (entered into force 11 November 1970);

(7) International Convention on the Suppression and Punishment of the Crime of Apartheid of 30 November 1973 (entered into force 18 July 1976);

(8) Additional Protocol of 8 June 1977 to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Article 85 on the repression of breaches of this Protocol);

(9) Additional Protocol of 8 June 1977 to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of Non‑International Armed Conflicts (Additional Protocol II);

(10) Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY Statute) of 25 May 1993;

(11) Statute of the International Criminal Tribunal for Rwanda (ICTR Statute) of 8 November 1994;

(12) Rome Statute of the International Criminal Court (ICC) of 17 July 1998 (entered into force 1 July 2002).

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ANNEX VIISTATUTE OF THE OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES

CHAPTER I

General Provisions

1. The United Nations High Commissioner for Refugees, acting under the authority of the General Assembly, shall assume the function of providing international protection, under the auspices of the United Nations, to refugees who fall within the scope of the present Statute and of seeking perma‑nent solutions for the problem of refugees by assisting governments and, subject to the approval of the governments concerned, private organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities. In the exercise of his functions, more particularly when difficulties arise, and for instance with regard to any controversy concerning the international status of these persons, the High Commissioner shall request the opinion of an advisory committee on refugees if it is created.

2. The work of the High Commissioner shall be of an entirely non‑political character; it shall be hu‑manitarian and social and shall relate, as a rule, to groups and categories of refugees,

3. The High Commissioner shall follow policy directives given him by the General Assembly or the Economic and Social Council.

4. The Economic and Social Council may decide, after hearing the views of the High Commissioner on the subject, to establish an advisory committee on refugees, which shall consist of representatives of States Members and States non‑members of the United Nations, to be selected by the Council on the basis of their demonstrated interest in and devotion to the solution of the refugee problem.

5. The General Assembly shall review, not later than at its eighth regular session, the arrangements for the Office of the High Commissioner with a view to determining whether the Office should be continued beyond 31 December 1953.

CHAPTER II

Functions of the High Commissioner

6. The competence of the High Commissioner shall extend to:

A. (i) Any person who has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization;

(ii) Any person who, as a result of events occurring before 1 January 1951 and owing to well‑founded fear of being persecuted for reasons of race, religion, nationality or political opinion, is outside the country of his nationality and is unable or, owing to such fear or for reasons other than personal con‑venience, is unwilling to avail himself of the protection of that country; or who, not having a national‑ity and being outside the country of his former habitual residence, is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to return to it.

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Decisions as to eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of the present paragraph;

The competence of the High Commissioner shall cease to apply to any person defined in section A above if:

(a) He has voluntarily re‑availed himself of the protection of the country of his nationality; or

(b) Having lost his nationality, he has voluntarily reacquired it; or

(c) He has acquired a new nationality, and enjoys the protection of the country of his new nation‑ality; or

(d) He has voluntarily re‑established himself in the country which he left or outside which he remained owing to fear of persecution; or

(e) He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, claim grounds other than those of personal convenience for continuing to refuse to avail himself of the protection of the country of his nationality. Reasons of a purely eco‑nomic character may not be invoked; or

(f) Being a person who has no nationality, he can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist and he is able to return to the country of his former habitual residence, claim grounds other than those of personal convenience for continuing to refuse to return to that country;

B. Any other person who is outside the country of his nationality or, if he has no nationality, the coun‑try of his former habitual residence, because he has or had wellfounded fear of persecution by reason of his race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government of the country of his nationality, or, if he has no nationality, to return to the country of his former habitual residence.

7. Provided that the competence of the High Commissioner as defined in paragraph 6 above shall not extend to a person:

(a) Who is a national of more than one country unless he satisfies the provisions of the preceding paragraph in relation to each of the countries of which he is a national; or

(b) Who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country; or

(c) Who continues to receive from other organs or agencies of the United Nations protection or as‑sistance; or

(d) In respect of whom there are serious reasons for considering that he has committed a crime cov‑ered by the provisions of treaties of extradition or a crime mentioned in article VI of the London Charter of the International Military Tribunal or by the provisions of article 14, paragraph 2, of the Universal Declaration of Human Rights.33

8. The High Commissioner shall provide for the protection of refugees falling under the competence of his Office by:

(a) Promoting the conclusion and ratification of international conventions for the protection of refu‑gees, supervising their application and proposing amendments thereto;

33 See resolution 217 A (III).

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(b) Promoting through special agreements with governments the execution of any measures calculat‑ed to improve the situation of refugees and to reduce the number requiring protection;

(c) Assisting governmental and private efforts to promote voluntary repatriation or assimilation within new national communities;

(d) Promoting the admission of refugees, not excluding those in the most destitute categories, to the territories of States;

(e) Endeavouring to obtain permission for refugees to transfer their assets and especially those nec‑essary for their resettlement;

(f) Obtaining from governments information concerning the number and conditions of refugees in their territories and the laws and regulations concerning them;

(g) Keeping in close touch with the governments and inter‑governmental organizations concerned;

(h) Establishing contact in such manner as he may think best with private organizations dealing with refugee questions;

(i) Facilitating the co‑ordination of the efforts of private organizations concerned with the welfare of refugees.

9. The High Commissioner shall engage in such additional activities, including repatriation and re‑settlement, as the General Assembly may determine, within the limits of the resources placed at his disposal.

10. The High Commissioner shall administer any funds, public or private, which he receives for assis‑tance to refugees, and shall distribute them among the private and, as appropriate, public agencies which he deems best qualified to administer such assistance. The High Commissioner may reject any offers which he does not consider appropriate or which cannot be utilized. The High Commissioner shall not appeal to governments for funds or make a general appeal, without the prior approval of the General Assembly. The High Commissioner shall include in his annual report a statement of his activities in this field.

11. The High Commissioner shall be entitled to present his views before the General Assembly, the Economic and Social Council and their subsidiary bodies. The High Commissioner shall report annually to the General Assembly through the Economic and Social Council; his report shall be considered as a separate item on the agenda of the General Assembly.

12. The High Commissioner may invite the co‑operation of the various specialized agencies.

CHAPTER III

Organization and Finances

13. The High Commissioner shall be elected by the General Assembly on the nomination of the Sec‑retary‑General. The terms of appointment of the High Commissioner shall be proposed by the Secre‑tary‑General and approved by the General Assembly. The High Commissioner shall be elected for a term of three years, from 1 January 1951.

14. The High Commissioner shall appoint, for the same term, a Deputy High Commissioner of a na‑tionality other than his own.

15. (a) Within the limits of the budgetary appropriations provided, the staff of the Office of the High

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Commissioner shall be appointed by the High Commissioner and shall be responsible to him in the exercise of their functions.

(b) Such staff shall be chosen from persons devoted to the purposes of the Office of the High Com‑missioner.

(c) Their conditions of employment shall be those provided under the staff regulations adopted by the General Assembly and the rules promulgated thereunder by the Secretary‑General.

(d) Provision may also be made to permit the employment of personnel without compensation.

16. The High Commissioner shall consult the governments of the countries of residence of refugees as to the need for appointing representatives therein. In any country recognizing such need, there may be appointed a representative approved by the government of that country. Subject to the foregoing, the same representative may serve in more than one country.

17. The High Commissioner and the Secretary‑General shall make appropriate arrangements for liai‑son and consultation on matters of mutual interest.

18. The Secretary‑General shall provide the High Commissioner with all necessary facilities within budgetary limitations.

19. The Office of the High Commissioner shall be located in Geneva, Switzerland.

20. The Office of the High Commissioner shall be financed under the budget of the United Nations. Unless the General Assembly subsequently decides otherwise, no expenditure, other than administra‑tive expenditures relating to the functioning of the Office of the High Commissioner, shall be borne on the budget of the United Nations, and all other expenditures relating to the activities of the High Commissioner shall be financed by voluntary contributions.

21. The administration of the Office of the High Commissioner shall be subject to the Financial Regulations of the United Nations and to the financial rules promulgated thereunder by the Secre‑tary‑General.

22. Transactions relating to the High Commissioner’s funds shall be subject to audit by the United Nations Board of Auditors, provided that the Board may accept audited accounts from the agencies to which funds have been allocated. Administrative arrangements for the custody of such funds and their allocation shall be agreed between the High Commissioner and the Secretary‑General in accord‑ance with the Financial Regulations of the United Nations and rules promulgated thereunder by the Secretary‑General.

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GUIDELINES ON INTERNATIONAL PROTECTION

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1

Distr. GENERAL HCR/GIP/02/01 7 May 2002 Original: ENGLISH

GUIDELINES ON INTERNATIONAL PROTECTION NO. 1:

Gender‑Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees

UNHCR issues these Guidelines pursuant to its mandate, as contained in the Statute of the Office of the United Nations High Commissioner for Refugees, in conjunction with Article 35 of the 1951 Con‑vention relating to the Status of Refugees and Article II of its 1967 Protocol. These Guidelines com‑plement the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (re‑edited, Geneva, January 1992). They further replace UNHCR’s Position Paper on Gender‑Related Persecution (Geneva, January 2000) and result from the Second Track of the Global Consultations on International Pro‑tection process which examined this subject at its expert meeting in San Remo in September 2001.

These Guidelines are intended to provide legal interpretative guidance for governments, legal practitioners, decision‑makers and the judiciary, as well as UNHCR staff carrying out refugee sta‑tus determination in the field.

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I. INTRODUCTION

1. “Gender‑related persecution” is a term that has no legal meaning per se. Rather, it is used to en‑compass the range of different claims in which gender is a relevant consideration in the determination of refugee status. These Guidelines specifically focus on the interpretation of the refugee definition contained in Article 1A(2) of the 1951 Convention relating to the Status of Refugees (hereinafter “1951 Convention”) from a gender perspective, as well as propose some procedural practices in order to ensure that proper consideration is given to women claimants in refugee status determination proce‑dures and that the range of gender‑related claims are recognised as such.

2. It is an established principle that the refugee definition as a whole should be interpreted with an awareness of possible gender dimensions in order to determine accurately claims to refugee status. This approach has been endorsed by the General Assembly, as well as the Executive Committee of UNHCR’s Programme.1

3. In order to understand the nature of gender‑related persecution, it is essential to define and distin‑guish between the terms “gender” and “sex”. Gender refers to the relationship between women and men based on socially or culturally constructed and defined identities, status, roles and responsibil‑ities that are assigned to one sex or another, while sex is a biological determination. Gender is not static or innate but acquires socially and culturally constructed meaning over time. Gender‑related claims may be brought by either women or men, although due to particular types of persecution, they are more commonly brought by women. In some cases, the claimant’s sex may bear on the claim in significant ways to which the decision‑maker will need to be attentive. In other cases, however, the refugee claim of a female asylum‑seeker will have nothing to do with her sex. Gender‑related claims have typically encompassed, although are by no means limited to, acts of sexual violence, family/do‑mestic violence, coerced family planning, female genital mutilation, punishment for transgression of social mores, and discrimination against homosexuals.

4. Adopting a gender‑sensitive interpretation of the 1951 Convention does not mean that all women are automatically entitled to refugee status. The refugee claimant must establish that he or she has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

II. SUBSTANTIVE ANALYSIS

A. Background

5. Historically, the refugee definition has been interpreted through a framework of male experiences, which has meant that many claims of women and of homosexuals, have gone unrecognised. In the past decade, however, the analysis and understanding of sex and gender in the refugee context have advanced substantially in case law, in State practice generally and in academic writing. These devel‑opments have run parallel to, and have been assisted by, developments in international human rights law and standards,2 as well as in related areas of international law, including through jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda, and the Rome Statute of the International Criminal Court. In this regard, for instance, it should be noted that harmful practices

1 In its Conclusions of October 1999, No. 87 (n), the Executive Committee “not[ed] with appreciation special efforts by States to incorporate gender perspectives into asylum policies, regulations and practices; encourage[d] States, UNHCR and other concerned actors to promote wider acceptance, and inclusion in their protection criteria of the notion that persecution may be gender‑related or effected through sexual violence; further encourage[d] UNHCR and other concerned actors to develop, promote and implement guidelines, codes of conduct and training programmes on gender‑related ref‑ugee issues, in order to support the mainstreaming of a gender perspective and enhance accountability for the implementation of gender policies.” See also Executive Committee Conclusions: No. 39, Refugee Women and International Protection, 1985; No. 73, Refugee Protection and Sexual Violence, 1993; No. 77(g), General Conclusion on International Protection, 1995; No. 79(o), General Conclusion on International Protection, 1996; and No. 81(t), General Conclusion on International Protection, 1997.2 Useful texts include the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966, the International Covenant on Economic, Social and Cultural Rights 1966, the Convention on the Political Rights of Women 1953, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, the Convention on the Rights of the Child 1989, and in particular, the Convention on the Elimination of All Forms of Discrimination Against Women 1979 and the Declaration on the Elimination of Violence against Women 1993. Relevant regional instruments include the European Convention on Human Rights and Fundamental Freedoms. 1950, the American Convention on Human Rights 1969, and the African Charter on Human and Peoples’ Rights 1981.

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1in breach of international human rights law and standards cannot be justified on the basis of his‑torical, traditional, religious or cultural grounds.

6. Even though gender is not specifically referenced in the refugee definition, it is widely accepted that it can influence, or dictate, the type of persecution or harm suffered and the reasons for this treatment. The refugee definition, properly interpreted, therefore covers gender‑related claims. As such, there is no need to add an additional ground to the 1951 Convention definition.3

7. In attempting to apply the criteria of the refugee definition in the course of refugee status determination procedures, it is important to approach the assessment holistically, and have re‑gard to all the relevant circumstances of the case. It is essential to have both a full picture of the asylum‑seeker’s personality, background and personal experiences, as well as an analysis and up‑to‑date knowledge of historically, geographically and culturally specific circumstances in the country of origin. Making generalisations about women or men is not helpful and in doing so, crit‑ical differences, which may be relevant to a particular case, can be overlooked.

8. The elements of the definition discussed below are those that require a gender‑sensitive inter‑pretation. Other criteria (e.g. being outside the country of origin) remain, of course, also directly relevant to the holistic assessment of any claim. Throughout this document, the use of the term “women” includes the girl‑child.

B. Well‑founded fear of persecution

9. What amounts to a well‑founded fear of persecution will depend on the particular circumstanc‑es of each individual case. While female and male applicants may be subjected to the same forms of harm, they may also face forms of persecution specific to their sex. International human rights law and international criminal law clearly identify certain acts as violations of these laws, such as sexual violence, and support their characterisation as serious abuses, amounting to persecution.4 In this sense, international law can assist decision‑makers to determine the persecutory nature of a particular act. There is no doubt that rape and other forms of gender‑related violence, such as dowry‑related violence, female genital mutilation, domestic violence, and trafficking,5 are acts which inflict severe pain and suffering – both mental and physical – and which have been used as forms of persecution, whether perpetrated by State or private actors.

10. Assessing a law to be persecutory in and of itself has proven to be material to determining some gender‑related claims. This is especially so given the fact that relevant laws may emanate from traditional or cultural norms and practices not necessarily in conformity with international human rights standards. However, as in all cases, a claimant must still establish that he or she has a well‑founded fear of being persecuted as a result of that law. This would not be the case, for instance, where a persecutory law continues to exist but is no longer enforced.

11. Even though a particular State may have prohibited a persecutory practice (e.g. female geni‑tal mutilation), the State may nevertheless continue to condone or tolerate the practice, or may not be able to stop the practice effectively. In such cases, the practice would still amount to persecution. The fact that a law has been enacted to prohibit or denounce certain persecutory practices will therefore not in itself be sufficient to determine that the individual’s claim to ref‑ugee status is not valid.

12. Where the penalty or punishment for non‑compliance with, or breach of, a policy or law is dis‑proportionately severe and has a gender dimension, it would amount to persecution.6 Even if the law is one of general applicability, circumstances of punishment or treatment cannot be so severe

3 See Summary Conclusions – Gender‑Related Persecution, Global Consultations on International Protection, San Remo Expert Roundtable, 6‑8 September 2001, nos.1 and 3 (“Summary Conclusions – Gender‑Related Persecution”).4 See UNHCR, Handbook, para. 51.5 See below at para. 18.6 Persons fleeing from prosecution or punishment for a common law offence are not normally refugees, however, the distinction may be obscured, in particular, in circumstances of excessive punishment for breach of a legitimate law. See UNHCR, Handbook, paras. 56 and 57.

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as to be disproportionate to the objective of the law. Severe punishment for women who, by breach‑ing a law, transgress social mores in a society could, therefore, amount to persecution.

13. Even where laws or policies have justifiable objectives, methods of implementation that lead to consequences of a substantially prejudicial nature for the persons concerned, would amount to perse‑cution. For example, it is widely accepted that family planning constitutes an appropriate response to population pressures. However, implementation of such policies, through the use of forced abortions and sterilisations, would breach fundamental human rights law. Such practices, despite the fact that they may be implemented in the context of a legitimate law, are recognised as serious abuses and considered persecution.

Discrimination amounting to persecution

14. While it is generally agreed that ‘mere’ discrimination may not, in the normal course, amount to persecution in and of itself, a pattern of discrimination or less favourable treatment could, on cumu‑lative grounds, amount to persecution and warrant international protection. It would, for instance, amount to persecution if measures of discrimination lead to consequences of a substantially prejudi‑cial nature for the person concerned, e.g. serious restrictions on the right to earn one’s livelihood, the right to practice one’s religion, or access to available educational facilities.7

15. Significant to gender‑related claims is also an analysis of forms of discrimination by the State in failing to extend protection to individuals against certain types of harm. If the State, as a matter of policy or practice, does not accord certain rights or protection from serious abuse, then the discrim‑ination in extending protection, which results in serious harm inflicted with impunity, could amount to persecution. Particular cases of domestic violence, or of abuse for reasons of one’s differing sexual orientation, could, for example, be analysed in this context.

Persecution on account of one’s sexual orientation

16. Refugee claims based on differing sexual orientation contain a gender element. A claimant’s sexuality or sexual practices may be relevant to a refugee claim where he or she has been subject to persecutory (including discriminatory) action on account of his or her sexuality or sexual practices. In many such cases, the claimant has refused to adhere to socially or culturally defined roles or ex‑pectations of behaviour attributed to his or her sex. The most common claims involve homosexuals, transsexuals or transvestites, who have faced extreme public hostility, violence, abuse, or severe or cumulative discrimination.

17. Where homosexuality is illegal in a particular society, the imposition of severe criminal penalties for homosexual conduct could amount to persecution, just as it would for refusing to wear the veil by women in some societies. Even where homosexual practices are not criminalised, a claimant could still establish a valid claim where the State condones or tolerates discriminatory practices or harm perpetrated against him or her, or where the State is unable to protect effectively the claimant against such harm.

Trafficking for the purposes of forced prostitution or sexual exploitation as a form of persecution8

18. Some trafficked women or minors may have valid claims to refugee status under the 1951 Convention. The forcible or deceptive recruitment of women or minors for the purposes of forced prostitution or sexual exploitation is a form of gender‑related violence or abuse that can even lead to death. It can be considered a form of torture and cruel, inhuman or degrading treatment. It can also impose serious restrictions on a woman’s freedom of movement, caused by abduction, incar‑

7 See UNHCR, Handbook, para. 54.8 For the purposes of these Guidelines, “trafficking” is defined as per article 3 of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organised Crime, 2000. Article 3(1) provides that trafficking in persons means “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”

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1ceration, and/or confiscation of passports or other identify documents. In addition, trafficked women and minors may face serious repercussions after their escape and/or upon return, such as reprisals or retaliation from trafficking rings or individuals, real possibilities of being re‑traf‑ficked, severe community or family ostracism, or severe discrimination. In individual cases, being trafficked for the purposes of forced prostitution or sexual exploitation could therefore be the basis for a refugee claim where the State has been unable or unwilling to provide protection against such harm or threats of harm.9

Agents of Persecution

19. There is scope within the refugee definition to recognise both State and non‑State actors of persecution. While persecution is most often perpetrated by the authorities of a country, serious discriminatory or other offensive acts committed by the local populace, or by individuals, can also be considered persecution if such acts are knowingly tolerated by the authorities, or if the author‑ities refuse, or are unable, to offer effective protection.10

C. The causal link (“for reasons of”)

20. The well‑founded fear of being persecuted must be related to one or more of the Convention grounds. That is, it must be “for reasons of” race, religion, nationality, membership of a particular social group, or political opinion. The Convention ground must be a relevant contributing factor, though it need not be shown to be the sole, or dominant, cause. In many jurisdictions the causal link (“for reasons of”) must be explicitly established (e.g. some Common Law States) while in other States causation is not treated as a separate question for analysis, but is subsumed within the holistic analysis of the refugee definition. In many gender‑related claims, the difficult issue for a decision‑maker may not be deciding upon the applicable ground, so much as the causal link: that the well‑founded fear of being persecuted was for reasons of that ground. Attribution of the Convention ground to the claimant by the State or non‑State actor of persecution is sufficient to establish the required causal connection.

21. In cases where there is a risk of being persecuted at the hands of a non‑State actor (e.g. hus‑band, partner or other non‑State actor) for reasons which are related to one of the Convention grounds, the causal link is established, whether or not the absence of State protection is Conven‑tion related. Alternatively, where the risk of being persecuted at the hands of a non‑State actor is unrelated to a Convention ground, but the inability or unwillingness of the State to offer protection is for reasons of a Convention ground, the causal link is also established.11

D. Convention grounds

22. Ensuring that a gender‑sensitive interpretation is given to each of the Convention grounds is important in determining whether a particular claimant has fulfilled the criteria of the refugee definition. In many cases, claimants may face persecution because of a Convention ground which is attributed or imputed to them. In many societies a woman’s political views, race, nationality, religion or social affiliations, for example, are often seen as aligned with relatives or associates or with those of her community.

23. It is also important to be aware that in many gender‑related claims, the persecution feared could be for one, or more, of the Convention grounds. For example, a claim for refugee status based on transgression of social or religious norms may be analysed in terms of religion, political opinion or membership of a particular social group. The claimant is not required to identify accu‑rately the reason why he or she has a well‑founded fear of being persecuted.

9 Trafficking for other purposes could also amount to persecution in a particular case, depending on the circumstances.10 See UNHCR, Handbook, para. 65.11 See Summary Conclusions – Gender‑Related Persecution, no. 6.

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Race

24. Race for the purposes of the refugee definition has been defined to include all kinds of ethnic groups that are referred to as “races” in common usage.12 Persecution for reasons of race may be expressed in different ways against men and women. For example, the persecutor may choose to destroy the ethnic identity and/or prosperity of a racial group by killing, maiming or incarcerating the men, while the women may be viewed as propagating the ethnic or racial identity and persecuted in a different way, such as through sexual violence or control of reproduction.

Religion

25. In certain States, the religion assigns particular roles or behavioural codes to women and men respectively. Where a woman does not fulfil her assigned role or refuses to abide by the codes, and is punished as a consequence, she may have a well‑founded fear of being persecuted for reasons of religion. Failure to abide by such codes may be perceived as evidence that a woman holds un‑acceptable religious opinions regardless of what she actually believes. A woman may face harm for her particular religious beliefs or practices, or those attributed to her, including her refusal to hold particular beliefs, to practise a prescribed religion or to conform her behaviour in accordance with the teachings of a prescribed religion.

26. There is some overlap between the grounds of religion and political opinion in gender‑related claims, especially in the realm of imputed political opinion. While religious tenets require certain kinds of behaviour from a woman, contrary behaviour may be perceived as evidence of an unac‑ceptable political opinion. For example, in certain societies, the role ascribed to women may be attributable to the requirements of the State or official religion. The authorities or other actors of persecution may perceive the failure of a woman to conform to this role as the failure to practice or to hold certain religious beliefs. At the same time, the failure to conform could be interpreted as holding an unacceptable political opinion that threatens the basic structure from which certain political power flows. This is particularly true in societies where there is little separation between religious and State institutions, laws and doctrines.

Nationality

27. Nationality is not to be understood only as “citizenship”. It also refers to membership of an eth‑nic or linguistic group and may occasionally overlap with the term “race”.13 Although persecution on the grounds of nationality (as with race) is not specific to women or men, in many instances the nature of the persecution takes a gender‑specific form, most commonly that of sexual violence directed against women and girls.

Membership of a Particular Social Group14

28. Gender‑related claims have often been analysed within the parameters of this ground, making a proper understanding of this term of paramount importance. However, in some cases, the emphasis given to the social group ground has meant that other applicable grounds, such as religion or political opinion, have been over‑looked. Therefore, the interpretation given to this ground cannot render the other four Convention grounds superfluous.

29. Thus, a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.

30. It follows that sex can properly be within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable characteristics, and who

12 See UNHCR, Handbook, para. 68.13 See UNHCR, Handbook, para. 74.14 For more information, see UNHCR’s Guidelines on International Protection: “Membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/02, 7 May 2002).

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1are frequently treated differently than men.15 Their characteristics also identify them as a group in society, subjecting them to different treatment and standards in some countries.16 Equally, this definition would encompass homosexuals, transsexuals, or transvestites.

31. The size of the group has sometimes been used as a basis for refusing to recognize ‘women’ generally as a particular social group. This argument has no basis in fact or reason, as the other grounds are not bound by this question of size. There should equally be no requirement that the particular social group be cohesive or that members of it voluntarily associate,17 or that every member of the group is at risk of persecution.18 It is well‑accepted that it should be possible to identify the group independently of the persecution, however, discrimination or persecution may be a relevant factor in determining the visibility of the group in a particular context.19

Political Opinion

32. Under this ground, a claimant must show that he or she has a well‑founded fear of being per‑secuted for holding certain political opinions (usually different from those of the Government or parts of the society), or because the holding of such opinions has been attributed to him or her. Po‑litical opinion should be understood in the broad sense, to incorporate any opinion on any matter in which the machinery of State, government, society, or policy may be engaged. This may include an opinion as to gender roles. It would also include non‑conformist behaviour which leads the per‑secutor to impute a political opinion to him or her. In this sense, there is not as such an inherently political or an inherently non‑political activity, but the context of the case should determine its nature. A claim on the basis of political opinion does, however, presuppose that the claimant holds or is assumed to hold opinions not tolerated by the authorities or society, which are critical of their policies, traditions or methods. It also presupposes that such opinions have come or could come to the notice of the authorities or relevant parts of the society, or are attributed by them to the claimant. It is not always necessary to have expressed such an opinion, or to have already suffered any form of discrimination or persecution. In such cases the test of well‑founded fear would be based on an assessment of the consequences that a claimant having certain dispositions would have to face if he or she returned.

33. The image of a political refugee as someone who is fleeing persecution for his or her direct involvement in political activity does not always correspond to the reality of the experiences of women in some societies. Women are less likely than their male counterparts to engage in high profile political activity and are more often involved in ‘low level’ political activities that reflect dominant gender roles. For example, a woman may work in nursing sick rebel soldiers, in the re‑cruitment of sympathisers, or in the preparation and dissemination of leaflets. Women are also frequently attributed with political opinions of their family or male relatives, and subjected to per‑secution because of the activities of their male relatives. While this may be analysed in the context of an imputed political opinion, it may also be analysed as being persecution for reasons of her membership of a particular social group, being her “family”. These factors need to be taken into account in gender‑related claims.

34. Equally important for gender‑related claims is to recognise that a woman may not wish to engage in certain activities, such as providing meals to government soldiers, which may be inter‑preted by the persecutor(s) as holding a contrary political opinion.

15 See Summary Conclusions – Gender‑Related Persecution, no. 5.16 See also Executive Committee Conclusion No. 39, Refugee Women and International Protection, 1985: “States … are free to adopt the interpre‑tation that women asylum seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society in which they live may be considered as ‘a particular social group’ within the meaning of Article 1A(2) of the 1951 United Nations Refugee Convention”.17 See Summary Conclusions – Membership of a Particular Social Group, Global Consultations on International Protection, San Remo Expert Round‑table, 6‑8 September 2001, no. 4 (“Summary Conclusions – Membership of a Particular Social Group”).18 See Summary Conclusions – Membership of a Particular Social Group, Ibid., no. 7.19 See Summary Conclusions – Membership of a Particular Social Group, Ibid., no. 6.

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III. PROCEDURAL ISSUES20

35. Persons raising gender‑related refugee claims, and survivors of torture or trauma in particular, re‑quire a supportive environment where they can be reassured of the confidentiality of their claim. Some claimants, because of the shame they feel over what has happened to them, or due to trauma, may be reluctant to identify the true extent of the persecution suffered or feared. They may continue to fear persons in authority, or they may fear rejection and/or reprisals from their family and/or community.21

36. Against this background, in order to ensure that gender‑related claims, of women in particular, are properly considered in the refugee status determination process, the following measures should be borne in mind:

i. Women asylum‑seekers should be interviewed separately, without the presence of male family members, in order to ensure that they have an opportunity to present their case. It should be explained to them that they may have a valid claim in their own right.

ii. It is essential that women are given information about the status determination process, access to it, as well as legal advice, in a manner and language that she understands.

iii. Claimants should be informed of the choice to have interviewers and interpreters of the same sex as themselves,22 and they should be provided automatically for women claimants. Interviewers and interpreters should also be aware of and responsive to any cultural or religious sensitivities or personal factors such as age and level of education.

iv. An open and reassuring environment is often crucial to establishing trust between the inter‑viewer and the claimant, and should help the full disclosure of sometimes sensitive and personal information. The interview room should be arranged in such a way as to encourage discussion, promote confidentiality and to lessen any possibility of perceived power imbalances.

v. The interviewer should take the time to introduce him/herself and the interpreter to the claimant, explain clearly the roles of each person, and the exact purpose of the interview.23 The claimant should be assured that his/her claim will be treated in the strictest confidence, and information provided by the claimant will not be provided to members of his/her family. Importantly, the in‑terviewer should explain that he/she is not a trauma counselor.

vi. The interviewer should remain neutral, compassionate and objective during the interview, and should avoid body language or gestures that may be perceived as intimidating or culturally insen‑sitive or inappropriate. The interviewer should allow the claimant to present his/her claim with minimal interruption.

vii. Both ‘open‑ended’ and specific questions which may help to reveal gender issues relevant to a refugee claim should be incorporated into all asylum interviews. Women who have been involved in indirect political activity or to whom political opinion has been attributed, for example, often do not provide relevant information in interviews due to the male‑oriented nature of the questioning. Female claim‑ants may also fail to relate questions that are about ‘torture’ to the types of harm which they fear (such as rape, sexual abuse, female genital mutilation, ‘honour killings’, forced marriage, etc.).

20 This Part has benefited from the valuable guidance provided by various States and other actors, including the following guidelines: Considerations for Asylum Officers Adjudicating Asylum Claims from Women (Immigration and Naturalization Service, United States, 26 May 1995); Refugee and Humanitarian Visa Applicants: Guidelines on Gender Issues for Decision Makers (Department of Immigration and Humanitarian Affairs, Australia, July 1996) (hereinafter “Australian Guidelines on Gender Issues for Decision Makers”); Guideline 4 on Women Refugee Claimants Fearing Gender‑Related Persecution: Update (Im‑migration and Refugee Board, Canada, 13 November 1996); Position on Asylum Seeking and Refugee Women, (European Council on Refugees and Exiles, December 1997) (hereinafter “ECRE Position on Asylum Seeking and Refugee Women”); Gender Guidelines for the Determination of Asylum Claims in the UK (Refugee Women’s Legal Group, July 1998) (hereinafter “Refugee Women’s Group Gender Guidelines”); Gender Guidelines for Asylum Determination (National Consortium on Refugee Affairs, South Africa, 1999); Asylum Gender Guidelines (Immigration Appellate Authority, United Kingdom, November 2000); and Gender‑Based Persecution: Guidelines for the investigation and evaluation of the needs of women for protection (Migration Board, Legal Practice Division, Sweden, 28 March 2001).21 See also Sexual Violence Against Refugees: Guidelines on Prevention and Response (UNHCR, Geneva, 1995) and Prevention and Response to Sexual and Gender‑Based Violence in Refugee Situations (Report of Inter‑Agency Lessons Learned Conference Proceedings, 27‑29 March 2001, Geneva).22 See also Executive Committee Conclusion No. 64, Refugee Women and International Protection, 1990, (a) (iii): Provide, wherever necessary, skilled female interviewers in procedures for the determination of refugee status and ensure appropriate access by women asylum‑seekers to such procedures, even when accompanied by male family members.23 Ibid., para. 3.19.

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1viii. Particularly for victims of sexual violence or other forms of trauma, second and subsequent interviews may be needed in order to establish trust and to obtain all necessary information. In this regard, interviewers should be responsive to the trauma and emotion of claimants and should stop an interview where the claimant is becoming emotionally distressed.

ix. Where it is envisaged that a particular case may give rise to a gender‑related claim, adequate preparation is needed, which will also allow a relationship of confidence and trust with the claimant to be developed, as well as allowing the interviewer to ask the right questions and deal with any problems that may arise during an interview.

x. Country of origin information should be collected that has relevance in women’s claims, such as the position of women before the law, the political rights of women, the social and eco‑nomic rights of women, the cultural and social mores of the country and consequences for non‑adherence, the prevalence of such harmful traditional practices, the incidence and forms of reported violence against women, the protection available to them, any penalties imposed on those who perpetrate the violence, and the risks that a woman might face on her return to her country of origin after making a claim for refugee status.

xi. The type and level of emotion displayed during the recounting of her experiences should not affect a woman’s credibility. Interviewers and decision‑makers should understand that cultural differences and trauma play an important and complex role in determining behaviour. For some cases, it may be appropriate to seek objective psychological or medical evidence. It is unnecessary to establish the precise details of the act of rape or sexual assault itself, but events leading up to, and after, the act, the surrounding circumstances and details (such as, use of guns, any words or phrases spoken by the perpetrators, type of assault, where it occurred and how, details of the perpetrators (e.g. soldiers, civilians) etc.) as well as the motivation of the perpetrator may be required. In some circumstances it should be noted that a woman may not be aware of the reasons for her abuse.

xii. Mechanisms for referral to psycho‑social counseling and other support services should be made available where necessary. Best practice recommends that trained psycho‑social coun‑selors be available to assist the claimant before and after the interview.

Evidentiary Matters

37. No documentary proof as such is required in order for the authorities to recognise a refugee claim, however, information on practices in the country of origin may support a particular case. It is important to recognise that in relation to gender‑related claims, the usual types of evidence used in other refugee claims may not be as readily available. Statistical data or reports on the incidence of sexual violence may not be available, due to under‑reporting of cases, or lack of prosecution. Alternative forms of information might assist, such as the testimonies of other women similarly situated in written reports or oral testimony, of non‑governmental or international organisations or other independent research.

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IV. METHODS OF IMPLEMENTATION

38. Depending on the respective legal traditions, there have been two general approaches taken by States to ensure a gender‑sensitive application of refugee law and in particular of the refugee defini‑tion. Some States have incorporated legal interpretative guidance and/ or procedural safeguards with‑in legislation itself, while others have preferred to develop policy and legal guidelines on the same for decision‑makers. UNHCR encourages States who have not already done so to ensure a gender‑sensi‑tive application of refugee law and procedures, and stands ready to assist States in this regard.

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“Membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees

UNHCR issues these Guidelines pursuant to its mandate, as contained in the Statute of the Office of the United Nations High Commissioner for Refugees, and Article 35 of the 1951 Convention relat‑ing to the Status of Refugees and/or its 1967 Protocol. These Guidelines complement the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (re‑edited, Geneva, January 1992). They further supersede IOM/132/1989 – FOM/110/1989 Membership of a Particular Social Group (UNHCR, Geneva, 12 December 1989), and result from the Second Track of the Global Consul‑tations on International Protection process which examined this subject at its expert meeting in San Remo in September 2001.

These Guidelines are intended to provide legal interpretative guidance for governments, legal practitioners, decision‑makers and the judiciary, as well as UNHCR staff carrying out refugee sta‑tus determinations in the field.

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I. INTRODUCTION

1. “Membership of a particular social group” is one of the five grounds enumerated in Article 1A(2) of the 1951 Convention relating to the Status of Refugees (“1951 Convention”). It is the ground with the least clarity and it is not defined by the 1951 Convention itself. It is being invoked with increasing frequency in refugee status determinations, with States having recognised women, families, tribes, occupational groups, and homosexuals, as constituting a particular social group for the purposes of the 1951 Convention. The evolution of this ground has advanced the understanding of the refu‑gee definition as a whole. These Guidelines provide legal interpretative guidance on assessing claims which assert that a claimant has a well‑founded fear of being persecuted for reasons of his or her membership of a particular social group.

2. While the ground needs delimiting – that is, it cannot be interpreted to render the other four Convention grounds superfluous – a proper interpretation must be consistent with the object and purpose of the Convention.1 Consistent with the language of the Convention, this category cannot be interpreted as a “catch all” that applies to all persons fearing persecution. Thus, to preserve the structure and integrity of the Convention’s definition of a refugee, a social group cannot be defined exclusively by the fact that it is targeted for persecution (although, as discussed below, persecution may be a relevant element in determining the visibility of a particular social group).

3. There is no “closed list” of what groups may constitute a “particular social group” within the mean‑ing of Article 1A(2). The Convention includes no specific list of social groups, nor does the ratifying history reflect a view that there is a set of identified groups that might qualify under this ground. Rather, the term membership of a particular social group should be read in an evolutionary manner, open to the diverse and changing nature of groups in various societies and evolving international human rights norms.

4. The Convention grounds are not mutually exclusive. An applicant may be eligible for refugee status under more than one of the grounds identified in Article 1A(2).2 For example, a claimant may allege that she is at risk of persecution because of her refusal to wear traditional clothing. De‑pending on the particular circumstances of the society, she may be able to establish a claim based on political opinion (if her conduct is viewed by the State as a political statement that it seeks to suppress), religion (if her conduct is based on a religious conviction opposed by the State) or mem‑bership in a particular social group.


A. Summary of State Practice

5. Judicial decisions, regulations, policies, and practices have utilized varying interpretations of what constitutes a social group within the meaning of the 1951 Convention. Two approaches have domi‑nated decision‑making in common law jurisdictions.

6. The first, the “protected characteristics” approach (sometimes referred to as an “immutability” ap‑proach), examines whether a group is united by an immutable characteristic or by a characteristic that is so fundamental to human dignity that a person should not be compelled to forsake it. An immutable characteristic may be innate (such as sex or ethnicity) or unalterable for other reasons (such as the historical fact of a past association, occupation or status). Human rights norms may help to identify characteristics deemed so fundamental to human dignity that one ought not to be compelled to forego them. A decision‑maker adopting this approach would examine whether the asserted group is defined: (1) by an innate, unchangeable characteristic, (2) by a past temporary or voluntary status that

1 See Summary Conclusions – Membership of a Particular Social Group, Global Consultations on International Protection, San Remo Expert Roundtable, 6‑8 September 2001, no. 2 (“Summary Conclusions – Membership of a Particular Social Group”).2 See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (re‑edited, Geneva, January 1992), paras. 66‑67, 77; and see also Summary Conclusions – Membership of a Particular Social Group, no. 3.

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is unchangeable because of its historical permanence, or (3) by a characteristic or association that is so fundamental to human dignity that group members should not be compelled to forsake it. Ap‑plying this approach, courts and administrative bodies in a number of jurisdictions have concluded that women, homosexuals, and families, for example, can constitute a particular social group within the meaning of Article 1A(2).

7. The second approach examines whether or not a group shares a common characteristic which makes them a cognizable group or sets them apart from society at large. This has been referred to as the “social perception” approach. Again, women, families and homosexuals have been recog‑nized under this analysis as particular social groups, depending on the circumstances of the society in which they exist.

8. In civil law jurisdictions, the particular social group ground is generally less well developed. Most decision‑makers place more emphasis on whether or not a risk of persecution exists than on the standard for defining a particular social group. Nonetheless, both the protected characteristics and the social perception approaches have received mention.

9. Analyses under the two approaches may frequently converge. This is so because groups whose members are targeted based on a common immutable or fundamental characteristic are also often perceived as a social group in their societies. But at times the approaches may reach different results. For example, the social perception standard might recognize as social groups associations based on a characteristic that is neither immutable nor fundamental to human dignity – such as, perhaps, occupation or social class.

B. UNHCR’s Definition

10. Given the varying approaches, and the protection gaps which can result, UNHCR believes that the two approaches ought to be reconciled.

11. The protected characteristics approach may be understood to identify a set of groups that constitute the core of the social perception analysis. Accordingly, it is appropriate to adopt a single standard that incorporates both dominant approaches:

a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.

12. This definition includes characteristics which are historical and therefore cannot be changed, and those which, though it is possible to change them, ought not to be required to be changed because they are so closely linked to the identity of the person or are an expression of fundamental human rights. It follows that sex can properly be within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently to men.3

13. If a claimant alleges a social group that is based on a characteristic determined to be neither unalterable or fundamental, further analysis should be undertaken to determine whether the group is nonetheless perceived as a cognizable group in that society. So, for example, if it were deter‑mined that owning a shop or participating in a certain occupation in a particular society is neither unchangeable nor a fundamental aspect of human identity, a shopkeeper or members of a par‑ticular profession might nonetheless constitute a particular social group if in the society they are recognized as a group which sets them apart.

3 For more information on gender‑related claims, see UNHCR’s Guidelines on International Protection: Gender‑Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/01, 10 May 2002), as well as Summary Conclusions of the Expert Roundtable on Gender‑Related Persecution, San Remo, 6‑8 September 2001, no. 5.

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The role of persecution

14. As noted above, a particular social group cannot be defined exclusively by the persecution that members of the group suffer or by a common fear of being persecuted. Nonetheless, persecutory action toward a group may be a relevant factor in determining the visibility of a group in a particular society.4 To use an example from a widely cited decision, “[W]hile persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society. Left‑handed men are not a particular social group. But, if they were persecuted because they were left‑handed, they would no doubt quickly become recognizable in their society as a particular social group. Their persecution for being left‑handed would create a public perception that they were a particular social group. But it would be the attribute of being left‑handed and not the persecutory acts that would identify them as a particular social group.”5

No requirement of cohesiveness

15. It is widely accepted in State practice that an applicant need not show that the members of a particular group know each other or associate with each other as a group. That is, there is no require‑ment that the group be “cohesive.”6 The relevant inquiry is whether there is a common element that group members share. This is similar to the analysis adopted for the other Convention grounds, where there is no requirement that members of a religion or holders of a political opinion associate together, or belong to a “cohesive” group. Thus women may constitute a particular social group under certain circumstances based on the common characteristic of sex, whether or not they associate with one another based on that shared characteristic.

16. In addition, mere membership of a particular social group will not normally be enough to substan‑tiate a claim to refugee status. There may, however, be special circumstances where mere member‑ship can be a sufficient ground to fear persecution.7

Not all members of the group must be at risk of being persecuted

17. An applicant need not demonstrate that all members of a particular social group are at risk of persecution in order to establish the existence of a particular social group.8 As with the other grounds, it is not necessary to establish that all persons in the political party or ethnic group have been singled out for persecution. Certain members of the group may not be at risk if, for example, they hide their shared characteristic, they are not known to the persecutors, or they cooperate with the persecutor.

Relevance of size

18. The size of the purported social group is not a relevant criterion in determining whether a particu‑lar social group exists within the meaning of Article 1A(2). This is true as well for cases arising under the other Convention grounds. For example, States may seek to suppress religious or political ideolo‑gies that are widely shared among members of a particular society – perhaps even by a majority of the population; the fact that large numbers of persons risk persecution cannot be a ground for refusing to extend international protection where it is otherwise appropriate.

19. Cases in a number of jurisdictions have recognized “women” as a particular social group. This does not mean that all women in the society qualify for refugee status. A claimant must still demonstrate a well‑founded fear of being persecuted based on her membership in the particular social group, not be within one of the exclusion grounds, and meet other relevant criteria.

4 See Summary Conclusions – Membership of a Particular Social Group, no. 6.5 McHugh, J., in Applicant A v. Minister for Immigration and Ethnic Affairs, (1997) 190 CLR 225, 264, 142 ALR 331.6 See Summary Conclusions – Membership of a Particular Social Group, no. 4.7 See UNHCR, Handbook, para. 79.8 See Summary Conclusions – Membership of a Particular Social Group, no. 7.

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Non‑State actors and the causal link (“for reasons of”)

20. Cases asserting refugee status based on membership of a particular social group frequently involve claimants who face risks of harm at the hands of non‑State actors, and which have involved an analysis of the causal link. For example, homosexuals may be victims of violence from private groups; women may risk abuse from their husbands or partners. Under the Convention a person must have a well‑founded fear of being persecuted and that fear of being persecuted must be based on one (or more) of the Convention grounds. There is no requirement that the persecutor be a State actor. Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.9

21. Normally, an applicant will allege that the person inflicting or threatening the harm is acting for one of the reasons identified in the Convention. So, if a non‑State actor inflicts or threatens perse‑cution based on a Convention ground and the State is unwilling or unable to protect the claimant, then the causal link has been established. That is, the harm is being visited upon the victim for reasons of a Convention ground.

22. There may also arise situations where a claimant may be unable to show that the harm inflicted or threatened by the non‑State actor is related to one of the five grounds. For example, in the situ‑ation of domestic abuse, a wife may not always be able to establish that her husband is abusing her based on her membership in a social group, political opinion or other Convention ground. None‑theless, if the State is unwilling to extend protection based on one of the five grounds, then she may be able to establish a valid claim for refugee status: the harm visited upon her by her husband is based on the State’s unwillingness to protect her for reasons of a Convention ground.

23. This reasoning may be summarized as follows. The causal link may be satisfied: (1) where there is a real risk of being persecuted at the hands of a non‑State actor for reasons which are related to one of the Convention grounds, whether or not the failure of the State to protect the claimant is Convention related; or (2) where the risk of being persecuted at the hands of a non‑State actor is unrelated to a Convention ground, but the inability or unwillingness of the State to offer protection is for a Convention reason.

9 See UNHCR, Handbook, para. 65.

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3Distr. GENERAL HCR/GIP/03/03 10 February 2003 Original: ENGLISH


Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (the “Ceased Circumstances” Clauses)

UNHCR issues these Guidelines pursuant to its mandate, as contained in the Statute of the Office of the United Nations High Commissioner for Refugees, in conjunction with Article 35 of the 1951 Con‑vention relating to the Status of Refugees and Article II of its 1967 Protocol. These Guidelines com‑plement the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (re‑edited, Geneva, January 1992). They replace UNHCR’s The Cessation Clauses: Guidelines on their Application (Geneva, April 1999) in so far as these concern the “ceased circumstances” clauses and result, inter alia, from the Second Track of the Global Consultations on International Protection which examined this subject at an expert meeting in Lisbon in May 2001.

These Guidelines are intended to provide legal interpretative guidance for governments, legal practitioners, decision‑makers and the judiciary, as well as UNHCR staff carrying out refugee sta‑tus determination in the field.

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I. INTRODUCTION

1. The 1951 Convention relating to the Status of Refugees (hereinafter “1951 Convention”) recognises that refugee status ends under certain clearly defined conditions. This means that once an individual is determined to be a refugee, their status is maintained unless they fall within the terms of the cessa‑tion clauses or their status is cancelled or revoked.1 Under Article 1C of the 1951 Convention, refugee status may cease either through the actions of the refugee (contained in sub‑paragraphs 1 to 4), such as by re‑establishment in his or her country of origin,2 or through fundamental changes in the objec‑tive circumstances in the country of origin upon which refugee status was based (sub‑paragraphs 5 and 6). The latter are commonly referred to as the “ceased circumstances” or “general cessation” clauses. These Guidelines are concerned only with the latter provisions.

2. Article 1C(5) and (6) provides that the 1951 Convention shall cease to apply to any person falling under the terms of Article 1(A) if:


Provided that this paragraph shall not apply to a refugee falling under section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;

(6) Being a person who has no nationality he is, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual resi‑dence; 141,6

Provided that this paragraph shall not apply to a refugee falling under section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.

3. UNHCR or States may issue formal declarations of general cessation of refugee status for a par‑ticular refugee caseload.3 UNHCR has such competence under Article 6A of the Statute of the Office of the High Commissioner for Refugees in conjunction with Article 1C of the 1951 Convention. Due to the fact that large numbers of refugees voluntarily repatriate without an official declaration that conditions in their countries of origin no longer justify international protection, declarations are infre‑quent. Furthermore, many States Parties grant permanent residence status to refugees in their terri‑tories after several years, eventually leading to their integration and naturalisation. Similarly, cessation determinations on an individual basis as well as periodic reviews are rare, in recognition of the “need to respect a basic degree of stability for individual refugees”.4

4. The grounds identified in the 1951 Convention are exhaustive; that is, no additional grounds would justify a conclusion that international protection is no longer required.5 Operation of the cessation clauses should, in addition, be distinguished from other decisions that terminate refugee status. Ces‑sation differs from cancellation of refugee status. Cancellation is based on a determination that an in‑dividual should not have been recognised as a refugee in the first place. This is, for instance, so where it is established that there was a misrepresentation of material facts essential to the outcome of the determination process or that one of the exclusion clauses would have been applicable had all the relevant facts been known. Cessation also differs from revocation, which may take place if a refugee subsequently engages in conduct coming within the scope of Article 1F(a) or 1F(c).

1 See, UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, (hereinafter “UNHCR, Handbook”) (1979, Geneva, re‑edited Jan. 1992), para. 112. For distinction between cessation and cancellation/revocation see, para. 4 below.2 In these Guidelines, “country of origin” is understood to cover both the country of nationality and the country of former habitual residence, the latter in relation to refugees who are stateless. For more on Article 1C(1–4), see UNHCR, “The Cessation Clauses: Guidelines on their Application”, April 1999.3 See, for example, UNHCR’s formal declarations of general cessation: “Applicability of the Cessation Clauses to Refugees from Poland, Czechoslovakia and Hungary”, 15 Nov. 1991, “Applicability of Cessation Clauses to Refugees from Chile”, 28 March 1994, “Applicability of the Cessation Clauses to Ref‑ugees from the Republics of Malawi and Mozambique”, 31 Dec. 1996, “Applicability of the Cessation Clauses to Refugees from Bulgaria and Romania”, 1 Oct. 1997, “Applicability of the Ceased Circumstances; Cessation Clauses to pre‑1991 refugees from Ethiopia”, 23 Sept. 1999, and “Declaration of Cessation – Timor Leste”, 20 December 2002.4 “Summary Conclusions on Cessation of Refugee Status, Global Consultations on International Protection, Lisbon Expert Roundtable”, May 2001, no. B (17). See also, UNHCR, Handbook, para. 135.5 See, amongst others, UNHCR, Handbook, para. 116.

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5. The following framework for substantive analysis is drawn from the terms of Article 1C(5) and 1C(6) of the 1951 Convention and takes into account Executive Committee Conclusion No. 69, subsequent legal developments, and State practice.

A. GENERAL CONSIDERATIONS

6. When interpreting the cessation clauses, it is important to bear in mind the broad durable solutions context of refugee protection informing the object and purpose of these clauses. Numerous Executive Committee Conclusions affirm that the 1951 Convention and principles of refugee protection look to durable solutions for refugees.6 Accordingly, cessation practices should be developed in a manner consistent with the goal of durable solutions. Cessation should therefore not result in persons residing in a host State with an uncertain status. It should not result either in persons being compelled to return to a volatile situation, as this would undermine the likelihood of a durable solution and could also cause additional or re‑newed instability in an otherwise improving situation, thus risking future refugee flows. Ac‑knowledging these considerations ensures refugees do not face involuntary return to situa‑tions that might again produce flight and a need for refugee status. It supports the principle that conditions within the country of origin must have changed in a profound and enduring manner before cessation can be applied.

7. Cessation under Article 1C(5) and 1C(6) does not require the consent of or a voluntary act by the refugee. Cessation of refugee status terminates rights that accompany that status. It may bring about the return of the person to the country of origin and may thus break ties to family, social net‑works and employment in the community in which the refugee has become established. As a result, a premature or insufficiently grounded application of the ceased circumstances clauses can have serious consequences. It is therefore appropriate to interpret the clauses strictly and to ensure that procedures for determining general cessation are fair, clear, and transparent.

B. ASSESSMENT OF CHANGE OF CIRCUMSTANCES IN THE COUNTRY OF ORIGIN

8. Article 1C(5) and (6) provides for the cessation of a person’s refugee status where “the circum‑stances in connexion with which he [or she] has been recognized as a refugee have ceased to exist”. To assist assessment of how and to what extent conditions in the country of origin must have changed before these “ceased circumstances” clauses can be invoked, UNHCR’s Executive Committee has developed guidance in the form of Executive Committee Conclusion No. 69 (XLIII) (1992), which reads in part:

[I]n taking any decision on application of the cessation clauses based on “ceased circumstances”, States must carefully assess the fundamental character of the changes in the country of nationality or origin, including the general human rights situation, as well as the particular cause of fear of persecution, in order to make sure in an objective and verifiable way that the situation which justified the granting of refugee status has ceased to exist.

... [A]n essential element in such assessment by States is the fundamental, stable and durable character of the changes, making use of appropriate information available in this respect, inter alia, from relevant specialized bodies, including particularly UNHCR.

9. Key elements relevant to assessment of the extent and durability of change required before it can be said that the circumstances in connection with which refugee status was recognised have ceased to exist are outlined below.

6 See, e.g., Executive Committee Conclusions No. 29 (XXXIV) (1983), No. 50 (XXXIX) (1988), No. 58 (XL) (1989), No. 79 (XLVII) (1996), No. 81 (XLVIII) (1997), No. 85 (XLIX) (1998), No. 87 (L) (1999), No. 89 (L) (2000), and No. 90 (LII) (2001).

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The fundamental character of change

10. For cessation to apply, the changes need to be of a fundamental nature, such that the refugee “can no longer … continue to refuse to avail himself of the protection of the country of his national‑ity” (Article 1C(5)) or, if he has no nationality, is “able to return to the country of his former habitual residence” (Article 1C(6)). Cessation based on “ceased circumstances” therefore only comes into play when changes have taken place which address the causes of displacement which led to the recogni‑tion of refugee status.

11. Where indeed a “particular cause of fear of persecution”7 has been identified, the elimination of that cause carries more weight than a change in other factors. Often, however, circumstances in a country are inter‑linked, be these armed conflict, serious violations of human rights, severe discrim‑ination against minorities, or the absence of good governance, with the result that resolution of the one will tend to lead to an improvement in others. All relevant factors must therefore be taken into consideration. An end to hostilities, a complete political change and return to a situation of peace and stability remain the most typical situation in which Article 1C(5) or (6) applies.

12. Large‑scale spontaneous repatriation of refugees may be an indicator of changes that are occur‑ring or have occurred in the country of origin. Where the return of former refugees would be likely to generate fresh tension in the country of origin, however, this itself could signal an absence of effective, fundamental change. Similarly, where the particular circumstances leading to flight or to non‑return have changed, only to be replaced by different circumstances which may also give rise to refugee status, Article

1C(5) or (6) cannot be invoked.

The enduring nature of change

13. Developments which would appear to evidence significant and profound changes should be given time to consolidate before any decision on cessation is made. Occasionally, an evaluation as to wheth‑er fundamental changes have taken place on a durable basis can be made after a relatively short time has elapsed. This is so in situations where, for example, the changes are peaceful and take place under a constitutional process, where there are free and fair elections with a real change of government committed to respecting fundamental human rights, and where there is relative political and econom‑ic stability in the country.

14. A longer period of time will need to have elapsed before the durability of change can be tested where the changes have taken place violently, for instance, through the overthrow of a regime. Under the latter circumstances, the human rights situation needs to be especially carefully assessed. The process of national reconstruction must be given sufficient time to take hold and any peace arrange‑ments with opposing militant groups must be carefully monitored. This is particularly relevant after conflicts involving different ethnic groups, since progress towards genuine reconciliation has often proven difficult in such cases. Unless national reconciliation clearly starts to take root and real peace is restored, political changes which have occurred may not be firmly established.

Restoration of protection

15. In determining whether circumstances have changed so as to justify cessation under Article 1C(5) or (6), another crucial question is whether the refugee can effectively re‑avail him‑ or herself of the protection of his or her own country.8 Such protection must therefore be effective and available. It requires more than mere physical security or safety. It needs to include the existence of a function‑ing government and basic administrative structures, as evidenced for instance through a functioning system of law and justice, as well as the existence of adequate infrastructure to enable residents to exercise their rights, including their right to a basic livelihood.

7 See Executive Committee Conclusion No. 69 (XLIII) (1992), para. a.8 See Art. 12(4) of the 1966 International Covenant on Civil and Political Rights declaring: “No one shall be arbitrarily deprived of the right to enter his own country” and Human Rights Committee, General Comment No. 27, Article 12 (freedom of movement), 1999.

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16. An important indicator in this respect is the general human rights situation in the country. Fac‑tors which have special weight for its assessment are the level of democratic development in the country, including the holding of free and fair elections, adherence to international human rights instruments, and access for independent national or international organisations freely to verify respect for human rights. There is no requirement that the standards of human rights achieved must be exemplary. What matters is that significant improvements have been made, as illustrated at least by respect for the right to life and liberty and the prohibition of torture; marked progress in establishing an independent judiciary, fair trials and access to courts: as well as protection amongst others of the fundamental rights to freedom of expression, association and religion. Important, more specific indicators include declarations of amnesties, the repeal of oppressive laws, and the dismantling of former security services.

C. PARTIAL CESSATION

17. The 1951 Convention does not preclude cessation declarations for distinct sub‑groups of a general refugee population from a specific country, for instance, for refugees fleeing a particular regime but not for those fleeing after that regime was deposed.9 In contrast, changes in the refu‑gee’s country of origin affecting only part of the territory should not, in principle, lead to cessation of refugee status. Refugee status can only come to an end if the basis for persecution is removed without the precondition that the refugee has to return to specific safe parts of the country in order to be free from persecution. Also, not being able to move or to establish oneself freely in the country of origin would indicate that the changes have not been fundamental.

D. INDIVIDUAL CESSATION

18. A strict interpretation of Article 1C(5) and (6) would allow their application on an individual basis. It reads: “The Convention shall cease to apply to any person [if] ... [h]e can no longer, be‑cause the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection” of his country of origin (emphasis supplied). Yet Article 1C(5) and (6) have rarely been invoked in individual cases. States have not generally undertaken periodic reviews of individual cases on the basis of fundamental changes in the country of origin. These practices acknowledge that a refugee’s sense of stability should be preserved as much as possible. They are also consistent with Article 34 of the 1951 Convention, which urges States “as far as possible [to] facilitate the assimilation and naturalization of refu‑gees”. Where the cessation clauses are applied on an individual basis, it should not be done for the purposes of a re‑hearing de novo.

E. EXCEPTIONS TO CESSATION

Continued international protection needs

19. Even when circumstances have generally changed to such an extent that refugee status would no longer be necessary, there may always be the specific circumstances of individual cases that may warrant continued international protection. It has therefore been a general principle that all refugees affected by general cessation must have the possibility, upon request, to have such application in their cases reconsidered on international protection grounds relevant to their individual case.1010

“Compelling reasons”

20. Both Article 1C(5) and (6) contain an exception to the cessation provision, allowing a refu‑gee to invoke “compelling reasons arising out of previous persecution” for refusing to re‑avail

9 This approach has been taken by UNHCR on one occasion.10 Executive Committee, Conclusion No. 69 (XLIII) (1992), para. d.

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himself or herself of the protection of the country of origin. This exception is intended to cover cases where refugees, or their family members, have suffered atrocious forms of persecution and therefore cannot be expected to return to the country of origin or former habitual residence.11 This might, for example, include “ex‑camp or prison detainees, survivors or witnesses of violence against family members, including sexual violence, as well as severely traumatised persons. It is presumed that such persons have suffered grave persecution, including at the hands of elements of the local population, and cannot reasonably be expected to return.”12 Children should also be given special consideration in this regard, as they may often be able to invoke “compelling reasons” for refusing to return to their country of origin.

21. Application of the “compelling reasons” exception is interpreted to extend beyond the actual words of the provision to apply to Article 1A(2) refugees. This reflects a general humanitarian principle that is now well‑grounded in State practice.13

Long‑term residents

22. In addition, the Executive Committee, in Conclusion No. 69, recommends that States consider “appropriate arrangements” for persons “who cannot be expected to leave the country of asylum, due to a long stay in that country resulting in strong family, social and economic links”. In such situations, countries of asylum are encouraged to provide, and often do provide, the individuals concerned with an alternative residence status, which retains previously acquired rights, though in some instances with refugee status being withdrawn. Adopting this approach for long‑settled refugees is not required by the 1951 Convention per se, but it is consistent with the instrument’s broad humanitarian purpose and with respect for previously acquired rights, as set out in the aforementioned Executive Commit‑tee Conclusion No. 69 and international human rights law standards.14

F. CESSATION AND MASS INFLUX

Prima facie group determinations under the 1951 Convention

23. Situations of mass influx frequently involve groups of persons acknowledged as refugees on a group basis because of the readily apparent and objective reasons for flight and circumstances in the country of origin. The immediate impracticality of individual status determinations has led to use of a prima facie refugee designation or acceptance for the group.15 For such groups, the general principles described for cessation are applicable.

Temporary protection in mass influx situations that include persons covered by the 1951 Convention

24. Some States have developed “temporary protection” schemes16 under which assistance and pro‑tection against refoulement have been extended on a group basis, without either a determination of prima facie refugee status for the group or individual status determinations for members of the group. Even though the cessation doctrine does not formally come into play, this form of protection is built upon the 1951 Convention framework and members of the group may well be or include refugees under the Convention. Decisions by States to withdraw temporary protection should therefore be preceded by a thorough evaluation of the changes in the country of origin. Such decisions should also be accompanied by an opportunity for those unwilling to return and requesting international protec‑tion to have access to an asylum procedure. In this context, it is also appropriate for States to provide exceptions for individuals with “compelling reasons” arising out of prior persecution.

11 See amongst others, UNHCR, Handbook, para. 136.12 See UNHCR and UNHCHR Study, “Daunting Prospects Minority Women: Obstacles to their Return and Integration”, Sarajevo, Bosnia and Herzego‑vina, April 2000.13 See generally, J. Fitzpatrick and R. Bonoan, “Cessation of Refugee Protection” in Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection, eds E. Feller, V. Türk and F. Nicholson, (Cambridge University Press, 2003 forthcoming).14 See e.g., above footnote 8.15 See “Protection of Refugees in Mass Influx Situations: Overall Protection Framework, Global Consultations on International Protection”, EC/GC/01/4, 19 Feb. 2001.16 See, e.g., the European Union Directive on Temporary Protection, 2001/55/EC, 20 July 2001.

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III. PROCEDURAL ISSUES

25. As mentioned earlier, a declaration of general cessation has potentially serious consequences for recognised refugees. It acknowledges loss of refugee status and the rights that accompany that status, and it may contemplate the return of persons to their countries of origin. Thus, the follow‑ing procedural aspects should be observed:

General considerations

i. In making an assessment of the country of origin, States and UNHCR must “make sure in an objective and verifiable way that the situation which justified the granting of refugee status has ceased to exist”.17 As noted above, this assessment should include consideration of a range of factors, including the general human rights situation.

ii. The burden rests on the country of asylum to demonstrate that there has been a fundamental, stable and durable change in the country of origin and that invocation of Article 1C(5) or (6) is appropriate. There may be instances where certain groups should be excluded from the appli‑cation of general cessation because they remain at risk of persecution.

iii. It is important that both the declaration process and implementation plans be consultative and transparent, involving in particular UNHCR, given its supervisory role.18 NGOs and refugees should also be included in this consultative process. “Go and see” visits to the country of origin could, where feasible, be facilitated to examine conditions there, as well as an examination of the situation of refugees who have already returned voluntarily.

iv. General cessation declarations should be made public.

v. Counselling of refugees, information sharing and, if necessary, the provision of assistance to returnees are critical to the successful implementation of general cessation.

vi. Procedures operationalising a declaration of cessation need to be carried out in a flexi‑ble, phased manner, particularly in developing countries hosting large numbers of refugees. There needs to be a certain time lapse between the moment of declaration and implemen‑tation, allowing for preparations for return and arrangements for long‑term residents with acquired rights.

vii. Noting the potential impact of a general cessation declaration on refugees and their fami‑lies, they should be given an opportunity, upon request, to have their case reconsidered on grounds relevant to their individual case, in order to establish whether they come within the terms of the exceptions to cessation.19 In such cases, however, no action should be taken to withdraw rights of the refugee until a final decision has been taken.

viii. UNHCR retains a role in assisting the return of persons affected by a declaration of cessation or the integration of those allowed to stay, since they remain under UNHCR’s Mandate for a period of grace.

Post–declaration applications for refugee status

ix. A declaration of general cessation cannot serve as an automatic bar to refugee claims, ei‑ther at the time of a general declaration or subsequent to it. Even though general cessation may have been declared in respect of a particular country, this does not preclude individu‑als leaving this country from applying for refugee status. For example, even if fundamental changes have occurred in a State, members of identifiable sub‑groups – such as those based on ethnicity, religion, race, or political opinion – may still face particular circumstances that

17 This rigorous standard is reflected in Executive Committee Conclusion No. 69 (XLIII) (1992), para. a.18 See para. 8(a) of the UNHCR Statute, Article 35 of the 1951 Convention and Article II of the 1967 Protocol, as well as in particular, the second preambular paragraph of Executive Committee Conclusion No. 69 (XLIII) (1992).19 See paras. 19–22 of these Guidelines and Executive Committee Conclusion No. 69 (XLIII) (1992).

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warrant refugee status. Alternatively, a person may have a well‑founded fear of persecution by a private person or group that the government is unable or unwilling to control, persecution based on gender being one example.

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Distr. GENERAL HCR/GIP/03/04 23 July 2003 Original: ENGLISH


“Internal Flight or Relocation Alternative” within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees

UNHCR issues these Guidelines pursuant to its mandate, as contained in the Statute of the Office of the United Nations High Commissioner for Refugees, and Article 35 of the 1951 Convention relat‑ing to the Status of Refugees and/or its 1967 Protocol. These Guidelines supplement the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (re‑edited, Geneva, January 1992). They further supersede UNHCR’s Position Paper, Relocating Internally as a Reasonable Alternative to Seeking Asy‑lum – (The So‑Called “Internal Flight Alternative” or “Relocation Principle”) (Geneva, February 1999). They result, inter alia, from the Second Track of the Global Consultations on International Protec‑tion which examined this subject at its expert meeting in San Remo, Italy, in September 2001 and seek to consolidate appropriate standards and practice on this issue in light of recent develop‑ments in State practice.

These Guidelines are intended to provide interpretative legal guidance for governments, legal practitioners, decision‑makers and the judiciary, as well as UNHCR staff carrying out refugee sta‑tus determination in the field.

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I. INTRODUCTION

1. Internal flight or relocation alternative is a concept that is increasingly considered by decision‑mak‑ers in refugee status determination. To date, there has been no consistent approach to this concept and consequently divergent practices have emerged both within and across jurisdictions. Given the differing approaches, these Guidelines are designed to offer decision‑makers a more structured ap‑proach to analysis of this aspect of refugee status determination.

2. The concept of an internal flight or relocation alternative is not a stand‑alone principle of refugee law, nor is it an independent test in the determination of refugee status. A Convention refugee is a person who meets the criteria set out in Article 1A(2) of the 1951 Convention and/or 1967 Protocol re‑lating to the Status of Refugees (hereinafter “1951 Convention”). These criteria are to be interpreted in a liberal and humanitarian spirit, in accordance with their ordinary meaning, and in light of the object and purpose of the 1951 Convention. The concept of an internal flight or relocation alternative is not explicitly referred to in these criteria. The question of whether the claimant has an internal flight or relocation alternative may, however, arise as part of the refugee status determination process.

3. Some have located the concept of internal flight or relocation alternative in the “well‑ founded fear of being persecuted” clause of the definition, and others in the “unwilling … or unable … to avail himself of the protection of that country” clause. These approaches are not necessarily contradictory, since the definition comprises one holistic test of interrelated elements. How these elements relate, and the importance to be accorded to one or another element, necessarily falls to be determined on the facts of each individual case.1

4. International law does not require threatened individuals to exhaust all options within their own country first before seeking asylum; that is, it does not consider asylum to be the last resort. The concept of internal flight or relocation alternative should therefore not be invoked in a manner that would undermine important human rights tenets underlying the international protection regime, namely the right to leave one’s country, the right to seek asylum and protection against refoule‑ment. Moreover, since the concept can only arise in the context of an assessment of the refugee claim on its merits, it cannot be used to deny access to refugee status determination procedures. A consideration of internal flight or relocation necessitates regard for the personal circumstances of the individual claimant and the conditions in the country for which the internal flight or relocation alternative is proposed.2

5. Consideration of possible internal relocation areas is not relevant for refugees coming under the purview of Article I(2) of the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa 1969. Article I(2) specifically clarifies the definition of a refugee as follows: “every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality”.3


A. Part of the holistic assessment of refugee status

6. The 1951 Convention does not require or even suggest that the fear of being persecuted need always extend to the whole territory of the refugee’s country of origin.4 The concept of an internal flight or relocation alternative therefore refers to a specific area of the country where there is no

1 For further details, see UNHCR, “Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees”, Geneva, April 2001, (hereafter UNHCR, “Interpreting Article 1”), para. 12.2 Ibid., paras. 35–37.3 (Emphasis added.) The 1984 Cartagena Declaration also specifically refers to Article I(2) of the OAU Refugee Convention.4 See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (1979, Geneva, re‑edited 1992), (hereinafter “UNHCR, Handbook”), para. 91.

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risk of a well‑founded fear of persecution and where, given the particular circumstances of the case, the individual could reasonably be expected to establish him/herself and live a normal life.5 Consequently, if internal flight or relocation is to be considered in the context of refugee status determination, a particular area must be identified and the claimant provided with an adequate opportunity to respond.

7. In the context of the holistic assessment of a claim to refugee status, in which a well‑founded fear of persecution for a Convention reason has been established in some localised part of the country of origin, the assessment of whether or not there is a relocation possibility requires two main sets of analyses, undertaken on the basis of answers to the following sets of questions:

I. The Relevance Analysis

a. Is the area of relocation practically, safely, and legally accessible to the individual? If any of these conditions is not met, consideration of an alternative location within the country would not be relevant.

b. Is the agent of persecution the State? National authorities are presumed to act throughout the country. If they are the feared persecutors, there is a presumption in principle that an internal flight or relocation alternative is not available.

c. Is the agent of persecution a non‑State agent? Where there is a risk that the non‑ State actor will persecute the claimant in the proposed area, then the area will not be an internal flight or relocation alternative. This finding will depend on a determination of whether the persecutor is likely to pursue the claimant to the area and whether State protection from the harm feared is available there.

d. Would the claimant be exposed to a risk of being persecuted or other serious harm upon relocation? This would include the original or any new form of persecution or other serious harm in the area of relocation.

II. The Reasonableness Analysis

a. Can the claimant, in the context of the country concerned, lead a relatively normal life without fac‑ing undue hardship? If not, it would not be reasonable to expect the person to move there.

Scope of assessment

8. The determination of whether the proposed internal flight or relocation area is an appropriate alternative in the particular case requires an assessment over time, taking into account not only the circumstances that gave rise to the persecution feared, and that prompted flight from the original area, but also whether the proposed area provides a meaningful alternative in the future. The for‑ward‑looking assessment is all the more important since, although rejection of status does not au‑tomatically determine the course of action to be followed, forcible return may be a consequence.

B. The relevance analysis

9. The questions outlined in paragraph 7 can be analysed further as follows:

Is the area of relocation practically, safely, and legally accessible to the individual?

10. An area is not an internal flight or relocation alternative if there are barriers to reaching the area which are not reasonably surmountable. For example, the claimant should not be required to encounter physical dangers en route to the area such as mine fields, factional fighting, shifting war fronts, banditry or other forms of harassment or exploitation.

5 For issues concerning the burden of proof in establishing these issues see section III.A below.

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11. If the refugee claimant would have to pass through the original area of persecution in order to access the proposed area, that area cannot be considered an internal flight or relocation alternative. Similarly, passage through airports may render access unsafe, especially in cases where the State is the persecutor or where the persecutor is a non‑ State group in control of the airport.

12. The proposed area must also be legally accessible, that is, the individual must have the legal right to travel there, to enter, and to remain. Uncertain legal status can create pressure to move to unsafe areas, or to the area of original persecution. This issue may require particular attention in the case of stateless persons or those without documentation.

Is the agent of persecution the State?

13. The need for an analysis of internal relocation only arises where the fear of being persecuted is limited to a specific part of the country, outside of which the feared harm cannot materialise. In prac‑tical terms, this normally excludes cases where the feared persecution emanates from or is condoned or tolerated by State agents, including the official party in one‑party States, as these are presumed to exercise authority in all parts of the country.6 Under such circumstances the person is threatened with persecution countrywide unless exceptionally it is clearly established that the risk of persecution stems from an authority of the State whose power is clearly limited to a specific geographical area or where the State itself only has control over certain parts of the country.7

14. Where the risk of being persecuted emanates from local or regional bodies, organs or administra‑tions within a State, it will rarely be necessary to consider potential relocation, as it can generally be presumed that such local or regional bodies derive their authority from the State. The possibility of relocating internally may be relevant only if there is clear evidence that the persecuting authority has no reach outside its own region and that there are particular circumstances to explain the national government’s failure to counteract the localised harm.

Is the agent of persecution a non‑State agent?

15. Where the claimant fears persecution by a non‑State agent of persecution, the main inquiries should include an assessment of the motivation of the persecutor, the ability of the persecutor to pursue the claimant in the proposed area, and the protection available to the claimant in that area from State authorities. As with questions involving State protection generally, the latter involves an evaluation of the ability and willingness of the State to protect the claimant from the harm feared. A State may, for instance, have lost effective control over its territory and thus not be able to protect. Laws and mechanisms for the claimant to obtain protection from the State may reflect the State’s willingness, but, unless they are given effect in practice, they are not of themselves indicative of the availability of protection. Evidence of the State’s inability or unwillingness to protect the claimant in the original persecution area will be relevant. It can be presumed that if the State is unable or unwilling to protect the individual in one part of the country, it may also not be able or willing to extend protection in other areas. This may apply in particular to cases of gender‑related persecution.

16. Not all sources of possible protection are tantamount to State protection. For example, if the area is under the control of an international organisation, refugee status should not be denied solely on the assumption that the threatened individual could be protected by that organisation. The facts of the individual case will be particularly important. The general rule is that it is inappropriate to equate the exercise of a certain administrative authority and control over territory by international organisations on a transitional or temporary basis with national protection provided by States. Under international law, international organisations do not have the attributes of a State.

17. Similarly, it is inappropriate to find that the claimant will be protected by a local clan or militia in an area where they are not the recognised authority in that territory and/or where their control over

6 See Summary Conclusions – Internal Protection/Relocation/Flight Alternative, Global Consultations on International Protection, San Remo Expert Roundtable, 6–8 September 2001 (hereinafter “Summary Conclusions – Internal Protection/Relocation/Flight Alternative”), para. 2; UNHCR, “Interpret‑ing Article 1”, paras. 12–13.7 See also paras. 16, 17 and 27 of these Guidelines.

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the area may only be temporary. Protection must be effective and of a durable nature: It must be provided by an organised and stable authority exercising full control over the territory and popu‑lation in question.

Would the claimant be exposed to a risk of being persecuted or other serious harm upon relocation?

18. It is not sufficient simply to find that the original agent of persecution has not yet established a presence in the proposed area. Rather, there must be reason to believe that the reach of the agent of persecution is likely to remain localised and outside the designated place of internal relocation.

19. Claimants are not expected or required to suppress their political or religious views or other protected characteristics to avoid persecution in the internal flight or relocation area. The reloca‑tion alternative must be more than a “safe haven” away from the area of origin.

20. In addition, a person with an established fear of persecution for a 1951 Convention reason in one part of the country cannot be expected to relocate to another area of serious harm. If the claimant would be exposed to a new risk of serious harm, including a serious risk to life, safety, liberty or health, or one of serious discrimination,8 an internal flight or relocation alternative does not arise, irrespective of whether or not there is a link to one of the Convention grounds.9 The assessment of new risks would therefore also need to take into account serious harm generally covered under complementary forms of protection.10

21. The proposed area is also not an internal flight or relocation alternative if the conditions there are such that the claimant may be compelled to go back to the original area of persecution, or indeed to another part of the country where persecution or other forms of serious harm may be a possibility.

C. The reasonableness analysis

22. In addition to there not being a fear of persecution in the internal flight or relocation alterna‑tive, it must be reasonable in all the circumstances for the claimant to relocate there. This test of “reasonableness” has been adopted by many jurisdictions. It is also referred to as a test of “undue hardship” or “meaningful protection”.

23. The “reasonableness test” is a useful legal tool which, while not specifically derived from the language of the 1951 Convention, has proved sufficiently flexible to address the issue of whether or not, in all the circumstances, the particular claimant could reasonably be expected to move to the proposed area to overcome his or her well‑founded fear of being persecuted. It is not an anal‑ysis based on what a hypothetical “reasonable person” should be expected to do. The question is what is reasonable, both subjectively and objectively, given the individual claimant and the condi‑tions in the proposed internal flight or relocation alternative.

Can the claimant, in the context of the country concerned, lead a relatively normal life without facing undue hardship?

24. In answering this question, it is necessary to assess the applicant’s personal circumstances, the existence of past persecution, safety and security, respect☻ for human rights, and possibility for economic survival.

8 See UNHCR, Handbook, paras. 51–52.9 A more general right not to be returned to a country where there is a risk of torture or cruel or inhuman treatment is found, either explicitly or by interpretation, in international human rights instruments. The most prominent are Article 3 of the Convention against Torture 1984, Article 7 of the International Covenant on Civil and Political Rights 1966, and Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.10 See UN docs. EC/50/SC/CRP.18, 9 June 2000 and EC/GC/01/18, 4 September 2001.

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Personal circumstances

25. The personal circumstances of an individual should always be given due weight in assessing whether it would be unduly harsh and therefore unreasonable for the person to relocate in the pro‑posed area. Of relevance in making this assessment are factors such as age, sex, health, disability, family situation and relationships, social or other vulnerabilities, ethnic, cultural or religious considera‑tions, political and social links and compatibility, language abilities, educational, professional and work background and opportunities, and any past persecution and its psychological effects. In particular, lack of ethnic or other cultural ties may result in isolation of the individual and even discrimination in communities where close ties of this kind are a dominant feature of daily life. Factors which may not on their own preclude relocation may do so when their cumulative effect is taken into account. De‑pending on individual circumstances, those factors capable of ensuring the material and psychological well‑being of the person, such as the presence of family members or other close social links in the proposed area, may be more important than others.

Past persecution

26. Psychological trauma arising out of past persecution may be relevant in determining whether it is reasonable to expect the claimant to relocate in the proposed area. The provision of psychological assessments attesting to the likelihood of further psychological trauma upon return would militate against finding that relocation to the area is a reasonable alternative. In some jurisdictions, the very fact that the individual suffered persecution in the past is sufficient in itself to obviate any need to address the internal relocation issue.

Safety and security

27. The claimant must be able to find safety and security and be free from danger and risk of injury. This must be durable, not illusory or unpredictable. In most cases, countries in the grip of armed con‑flict would not be safe for relocation, especially in light of shifting armed fronts which could suddenly bring insecurity to an area hitherto considered safe. In situations where the proposed internal flight or relocation alternative is under the control of an armed group and/or State‑like entity, careful exami‑nation must be made of the durability of the situation there and the ability of the controlling entity to provide protection and stability.

Respect for human rights

28. Where respect for basic human rights standards, including in particular non‑derogable rights, is clearly problematic, the proposed area cannot be considered a reasonable alternative. This does not mean that the deprivation of any civil, political or socio‑economic human right in the proposed area will disqualify it from being an internal flight or relocation alternative. Rather, it requires, from a practical perspective, an assessment of whether the rights that will not be respected or protected are fundamental to the individual, such that the deprivation of those rights would be sufficiently harmful to render the area an unreasonable alternative.

Economic survival

29. The socio‑economic conditions in the proposed area will be relevant in this part of the analysis. If the situation is such that the claimant will be unable to earn a living or to access accommodation, or where medical care cannot be provided or is clearly inadequate, the area may not be a reasonable alternative. It would be unreasonable, including from a human rights perspective, to expect a person to relocate to face economic destitution or existence below at least an adequate level of subsistence. At the other end of the spectrum, a simple lowering of living standards or worsening of economic status may not be sufficient to reject a proposed area as unreasonable. Conditions in the area must be such that a relatively normal life can be led in the context of the country concerned. If, for instance, an individual would be without family links and unable to benefit from an informal social safety net, relocation may not be reasonable, unless the person would otherwise be able to sustain a relatively normal life at more than just a minimum subsistence level.

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30. If the person would be denied access to land, resources and protection in the proposed area because he or she does not belong to the dominant clan, tribe, ethnic, religious and/or cultural group, relocation there would not be reasonable. For example, in many parts of Africa, Asia and elsewhere, common ethnic, tribal, religious and/or cultural factors enable access to land, resources and protection. In such situations, it would not be reasonable to expect someone who does not belong to the dominant group, to take up residence there. A person should also not be required to relocate to areas, such as the slums of an urban area, where they would be required to live in conditions of severe hardship.

D. Relocation and internally displaced persons

31. The presence of internally displaced persons who are receiving international assistance in one part of the country is not in itself conclusive evidence that it is reasonable for the claimant to relocate there. For example, the standard and quality of life of the internally displaced are often insufficient to support a finding that living in the area would be a reasonable alternative to flight. Moreover, where internal displacement is a result of “ethnic cleansing” policies, denying refugee status on the basis of the internal flight or relocation concept could be interpreted as condoning the resulting situation on the ground and therefore raises additional concerns.

32. The reality is that many thousands of internally displaced persons do not enjoy basic rights and have no opportunity to exercise the right to seek asylum outside their country. Thus, although standards largely agreed by the international community now exist, their implementation is by no means assured in practice. Moreover, the Guiding Principles on Internal Displacement specifically affirm in Principle 2(2) that they are not to be interpreted as “restricting, modifying or impairing the provisions of any international human rights or international humanitarian law instrument or rights granted to persons under domestic law” and in particular, they are “without prejudice to the right to seek and enjoy asylum in other countries.”11


A. Burden of proof

33. The use of the relocation concept should not lead to additional burdens on asylum‑ seekers. The usual rule must continue to apply, that is, the burden of proving an allegation rests on the one who asserts it. This is consistent with paragraph 196 of the Handbook which states that

… while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his [or her] disposal to produce the necessary evidence in support of the application.

34. On this basis, the decision‑maker bears the burden of proof of establishing that an analysis of relocation is relevant to the particular case. If considered relevant, it is up to the party asserting this to identify the proposed area of relocation and provide evidence establishing that it is a reasonable alternative for the individual concerned.

35. Basic rules of procedural fairness require that the asylum‑seeker be given clear and adequate notice that such a possibility is under consideration.12 They also require that the person be given an opportunity to provide arguments why (a) the consideration of an alternative location is not relevant in the case, and (b) if deemed relevant, that the proposed area would be unreasonable.

11 See also W. Kälin, Guiding Principles on Internal Displacement: Annotations, Studies in Transnational Legal Policy No. 32, 2000 (The American Society of International Law, The Brookings Institution, Project on Internal Displacement), pp. 8‑10.12 See Summary Conclusions – Internal Protection/Relocation/Flight Alternative, para. 7.

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B. Accelerated or admissibility procedures

36. Given the complex and substantive nature of the inquiry, the examination of an internal flight or relocation alternative is not appropriate in accelerated procedures, or in deciding on an individual’s admissibility to a full status determination procedure.13

C. Country of origin information

37. While examination of the relevance and reasonableness of a potential internal relocation area always requires an assessment of the individual’s own particular circumstances, well‑documented, good quality and current information and research on conditions in the country of origin are important components for the purpose of such examination. The usefulness of such information may, however, be limited in cases where the situation in the country of origin is volatile and sudden changes may occur in areas hitherto considered safe. Such changes may not have been recorded by the time the claim is being heard.

IV. CONCLUSION

38. The concept of internal flight or relocation alternative is not explicitly referred to in the criteria set out in Article 1A(2) of the 1951 Convention. The question of whether the claimant has an internal flight or relocation alternative may, however, arise as part of the holistic determination of refugee status. It is relevant only in certain cases, particularly when the source of persecution emanates from a non‑State actor. Even when relevant, its applicability will depend on a full consideration of all the cir‑cumstances of the case and the reasonableness of relocation to another area in the country of origin.

13 See Summary Conclusions – Internal Protection/Relocation/Flight Alternative, para. 6; Executive Committee Conclusion No. 87 (L), 1999, para. j; and Note on International Protection, 1999, para. 26 (UN doc. A/AC.96/914, 7 July 1999).

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Distr. GENERAL HCR/GIP/03/05 4 September 2003 Original: ENGLISH


Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees

UNHCR issues these Guidelines pursuant to its mandate, as contained in the 1950 Statute of the Office of the United Nations High Commissioner for Refugees, in conjunction with Article 35 of the 1951 Convention relating to the Status of Refugees and Article II of its 1967 Protocol. These Guide‑lines complement the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (re‑edited, Ge‑neva, January 1992). These Guidelines summarise the Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees (4 September 2003) which forms an integral part of UNHCR’s position on this issue. They supersede The Exclu‑sion Clauses: Guidelines on their Application (UNHCR, Geneva, 1 December 1996) and Note on the Exclusion Clauses (UNHCR, Geneva, 30 May 1997), and result, inter alia, from the Second Track of the Global Consultations on International Protection process which examined this subject at its expert meeting in Lisbon, Portugal, in May 2001. An update of these Guidelines was also deemed necessary in light of contemporary developments in international law.


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I. INTRODUCTION

A. Background

1. Paragraph 7(d) of the 1950 UNHCR Statute, Article 1F of the 1951 Convention relating to the Status of Refugees (hereinafter “1951 Convention”) and Article I(5) of the 1969 Organisation of Af‑rican Unity (OAU) Convention Governing the Specific Aspects of Refugee Problems in Africa (here‑inafter “OAU Convention”) all oblige States and UNHCR to deny the benefits of refugee status to certain persons who would otherwise qualify as refugees. These provisions are commonly referred to as “the exclusion clauses”. These Guidelines provide a summary of the key issues relating to these provisions – further guidance can be found in UNHCR’s Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees (hereinafter “the Background Note”), which forms an integral part of these Guidelines.

2. The rationale for the exclusion clauses, which should be borne in mind when considering their ap‑plication, is that certain acts are so grave as to render their perpetrators undeserving of international protection as refugees. Their primary purpose is to deprive those guilty of heinous acts, and serious common crimes, of international refugee protection and to ensure that such persons do not abuse the institution of asylum in order to avoid being held legally accountable for their acts. The exclusion clauses must be applied “scrupulously” to protect the integrity of the institution of asylum, as is recog‑nised by UNHCR’s Executive Committee in Conclusion No. 82 (XLVIII), 1997. At the same time, given the possible serious consequences of exclusion, it is important to apply them with great caution and only after a full assessment of the individual circumstances of the case. The exclusion clauses should, therefore, always be interpreted in a restrictive manner.

3. The exclusion clauses in the 1951 Convention are exhaustive. This should be kept in mind when interpreting Article I(5) of the OAU Convention which contains almost identical language. Article 1F of the 1951 Convention states that the provisions of that Convention “shall not apply to any person with respect to whom there are serious reasons for considering” that:

(a) he [or she] has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he [or she] has committed a serious non‑political crime outside the country of refuge prior to his [or her] admission to that country as a refugee; or

(c) he [or she] has been guilty of acts contrary to the purposes and principles of the United Nations.

B. Relationship with other provisions of the 1951 Convention

4. Article 1F of the 1951 Convention should be distinguished from Article 1D which applies to a spe‑cific category of persons receiving protection or assistance from organs and agencies of the United Nations other than UNHCR.1 Article 1F should also be distinguished from Article 1E which deals with persons not in need (as opposed to undeserving) of international protection. Moreover the exclusion clauses are not to be confused with Articles 32 and 33(2) of the Convention which deal respectively with the expulsion of, and the withdrawal of protection from refoulement from, recognised refugees who pose a danger to the host State (for example, because of serious crimes they have committed there). Article 33(2) concerns the future risk that a recognised refugee may pose to the host State.

C. Temporal scope

5. Articles 1F(a) and 1F(c) are concerned with crimes whenever and wherever they are committed. By contrast, the scope of Article 1F(b) is explicitly limited to crimes committed outside the country of refuge prior to admission to that country as a refugee.

1 See, UNHCR, “Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees”, October 2002.

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D. Cancellation or revocation on the basis of exclusion

6. Where facts which would have led to exclusion only come to light after the grant of refugee status, this would justify cancellation of refugee status on the grounds of exclusion. The reverse is that information casting doubt on the basis on which an individual has been excluded should lead to reconsideration of eligibility for refugee status. Where a refugee engages in conduct falling within Article 1F(a) or 1F(c), this would trigger the application of the exclusion clauses and the revocation of refugee status, provided all the criteria for the application of these clauses are met.

E. Responsibility for determination of exclusion

7. States parties to the 1951 Convention/1967 Protocol and/or OAU Convention and UNHCR need to consider whether the exclusion clauses apply in the context of the determination of ref‑ugee status. Paragraph 7(d) of UNHCR’s Statute covers similar grounds to Article 1F of the 1951 Convention, although UNHCR officials should be guided by the language of Article 1F, as it repre‑sents the later and more specific formulation.

F. Consequences of exclusion

8. Although a State is precluded from granting refugee status pursuant to the 1951 Convention or the OAU Convention to an individual it has excluded, it is not otherwise obliged to take any particular course of action. The State concerned can choose to grant the excluded individual stay on other grounds, but obligations under international law may require that the person concerned be criminally prosecuted or extradited. A decision by UNHCR to exclude someone from refugee status means that that individual can no longer receive protection or assistance from the Office.

9. An excluded individual may still be protected against return to a country where he or she is at risk of ill‑treatment by virtue of other international instruments. For example, the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment absolutely pro‑hibits the return of an individual to a country where there is a risk that he or she will be subjected to torture. Other international and regional human rights instruments contain similar provisions.2


A. Article 1F(a): Crimes against peace, war crimes and crimes against humanity

10. Amongst the various international instruments which offer guidance on the scope of these international crimes are the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the four 1949 Geneva Conventions for the Protection of Victims of War and the two 1977 Additional Protocols, the Statutes of the International Criminal Tribunals for the for‑mer Yugoslavia and Rwanda, the 1945 Charter of the International Military Tribunal (the London Charter), and most recently the 1998 Statute of the International Criminal Court which entered into force on 1 July 2002.

11. According to the London Charter a crime against peace involves the “planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agree‑ments, or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing”. Given the nature of this crime, it can only be committed by those in a high position of authority representing a State or a State‑like entity. In practice, this provision has rarely been invoked.

2 For further details, see Annex A of the Background Note accompanying these Guidelines.

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12. Certain breaches of international humanitarian law constitute war crimes.3 Although such crimes can be committed in both international and non‑international armed conflicts, the content of the crimes depends on the nature of the conflict. War crimes cover such acts as wilful killing and torture of civilians, launching indiscriminate attacks on civilians, and wilfully depriving a civilian or a prisoner of war of the rights of fair and regular trial.

13. The distinguishing feature of crimes against humanity,4 which cover acts such as genocide, mur‑der, rape and torture, is that they must be carried out as part of a widespread or systematic attack directed against the civilian population. An isolated act can, however, constitute a crime against hu‑manity if it is part of a coherent system or a series of systematic and repeated acts. Since such crimes can take place in peacetime as well as armed conflict, this is the broadest category under Article 1F(a).

B. Article 1F(b): Serious non‑political crimes

14. This category does not cover minor crimes nor prohibitions on the legitimate exercise of human rights. In determining whether a particular offence is sufficiently serious, international rather than local standards are relevant. The following factors should be taken into account: the nature of the act, the actual harm inflicted, the form of procedure used to prosecute the crime, the nature of the penalty, and whether most jurisdictions would consider it a serious crime. Thus, for example, mur‑der, rape and armed robbery would undoubtedly qualify as serious offences, whereas petty theft would obviously not.

15. A serious crime should be considered non‑political when other motives (such as personal rea‑sons or gain) are the predominant feature of the specific crime committed. Where no clear link exists between the crime and its alleged political objective or when the act in question is disproportionate to the alleged political objective, non‑political motives are predominant.5 The motivation, context, methods and proportionality of a crime to its objectives are important factors in evaluating its po‑litical nature. The fact that a particular crime is designated as non‑political in an extradition treaty is of significance, but not conclusive in itself. Egregious acts of violence, such as acts those commonly considered to be of a “terrorist” nature, will almost certainly fail the predominance test, being wholly disproportionate to any political objective. Furthermore, for a crime to be regarded as political in na‑ture, the political objectives should be consistent with human rights principles.

16. Article 1F(b) also requires the crime to have been committed “outside the country of refuge prior to [the individual’s] admission to that country as a refugee”. Individuals who commit “serious non‑po‑litical crimes” within the country of refuge are subject to that country’s criminal law process and, in the case of particularly grave crimes, to Articles 32 and 33(2) of the 1951 Convention.

C. Article 1F(c): Acts contrary to the purposes and principles of the United Nations

17. Given the broad, general terms of the purposes and principles of the United Nations, the scope of this category is rather unclear and should therefore be read narrowly. Indeed, it is rarely applied and, in many cases, Article 1F(a) or 1F(b) are anyway likely to apply. Article 1F(c) is only triggered in extreme circumstances by activity which attacks the very basis of the international community’s coexistence. Such activity must have an international dimension. Crimes capable of affecting international peace, security and peaceful relations between States, as well as serious and sustained violations of human rights, would fall under this category. Given that Articles 1 and 2 of the United Nations Charter essen‑tially set out the fundamental principles States must uphold in their mutual relations, it would appear that in principle only persons who have been in positions of power in a State or State‑like entity would appear capable of committing such acts. In cases involving a terrorist act, a correct application of Arti‑cle 1F(c) involves an assessment as to the extent to which the act impinges on the international plane – in terms of its gravity, international impact, and implications for international peace and security.

3 For instruments defining war crimes, see Annex B of the Background Note.4 For instruments defining crimes against humanity, see Annex C of the Background Note.5 See para 152 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, re‑edited 1992.

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D. Individual responsibility

18. For exclusion to be justified, individual responsibility must be established in relation to a crime covered by Article 1F. Specific considerations in relation to crimes against peace and acts against the purposes and principles of the UN have been discussed above. In general, individual respon‑sibility flows from the person having committed, or made a substantial contribution to the com‑mission of the criminal act, in the knowledge that his or her act or omission would facilitate the criminal conduct. The individual need not physically have committed the criminal act in question. Instigating, aiding and abetting and participating in a joint criminal enterprise can suffice.

19. The fact that a person was at some point a senior member of a repressive government or a member of an organisation involved in unlawful violence does not in itself entail individual liability for excludable acts. A presumption of responsibility may, however, arise where the individual has remained a member of a government clearly engaged in activities that fall within the scope of Article 1F. Moreover, the purposes, activities and methods of some groups are of a particularly violent nature, with the result that voluntary membership thereof may also raise a presumption of individual responsibility. Caution must be exercised when such a presumption of responsibility arises, to consider issues including the actual activities of the group, its organisational structure, the individual’s position in it, and his or her ability to influence significantly its activities, as well as the possible fragmentation of the group. Moreover, such presumptions in the context of asylum proceedings are rebuttable.

20. As for ex‑combatants, they should not necessarily be considered excludable, unless of course serious violations of international human rights law and international humanitarian law are report‑ed and indicated in the individual case.

E. Grounds for rejecting individual responsibility

21. Criminal responsibility can normally only arise where the individual concerned committed the material elements of the offence with knowledge and intent. Where the mental element is not satisfied, for example, because of ignorance of a key fact, individual criminal responsibility is not established. In some cases, the individual may not have the mental capacity to be held responsible a crime, for example, because of insanity, mental handicap, involuntary intoxication or, in the case of children, immaturity.

22. Factors generally considered to constitute defences to criminal responsibility should be consid‑ered. For example, the defence of superior orders will only apply where the individual was legally obliged to obey the order, was unaware of its unlawfulness and the order itself was not manifestly unlawful. As for duress, this applies where the act in question results from the person concerned necessarily and reasonably avoiding a threat of imminent death, or of continuing or imminent se‑rious bodily harm to him‑ or herself or another person, and the person does not intend to cause greater harm than the one sought to be avoided. Action in self‑defence or in defence of others or of property must be both reasonable and proportionate in relation to the threat.

23. Where expiation of the crime is considered to have taken place, application of the exclusion clauses may no longer be justified. This may be the case where the individual has served a penal sentence for the crime in question, or perhaps where a significant period of time has elapsed since commission of the offence. Relevant factors would include the seriousness of the offence, the passage of time, and any expression of regret shown by the individual concerned. In considering the effect of any pardon or amnesty, consideration should be given to whether it reflects the dem‑ocratic will of the relevant country and whether the individual has been held accountable in any other way. Some crimes are, however, so grave and heinous that the application of Article 1F is still considered justified despite the existence of a pardon or amnesty.

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F. Proportionality considerations

24. The incorporation of a proportionality test when considering exclusion and its consequences pro‑vides a useful analytical tool to ensure that the exclusion clauses are applied in a manner consist‑ent with the overriding humanitarian object and purpose of the 1951 Convention. The concept has evolved in particular in relation to Article 1F(b) and represents a fundamental principle of many fields of international law. As with any exception to a human rights guarantee, the exclusion clauses must therefore be applied in a manner proportionate to their objective, so that the gravity of the offence in question is weighed against the consequences of exclusion. Such a proportionality analysis would, however, not normally be required in the case of crimes against peace, crimes against humanity, and acts falling under Article 1F(c), as the acts covered are so heinous. It remains relevant, however, to Article 1F(b) crimes and less serious war crimes under Article 1F(a).

G. Particular acts and special cases

25. Despite the lack of an internationally agreed definition of terrorism,6 acts commonly considered to be terrorist in nature are likely to fall within the exclusion clauses even though Article 1F is not to be equated with a simple anti‑terrorism provision. Consideration of the exclusion clauses is, however, often unnecessary as suspected terrorists may not be eligible for refugee status in the first place, their fear being of legitimate prosecution as opposed to persecution for Convention reasons.

26. Of all the exclusion clauses, Article 1F(b) may be particularly relevant as acts of terrorist violence are likely to be disproportionate to any avowed political objective. Each case will require individual consideration. The fact that an individual is designated on a national or international list of terrorist suspects (or associated with a designated terrorist organisation) should trigger consideration of the exclusion clauses but will not in itself generally constitute sufficient evidence to justify exclusion. Exclusion should not be based on membership of a particular organisation alone, although a presump‑tion of individual responsibility may arise where the organisation is commonly known as notoriously violent and membership is voluntary. In such cases, it is necessary to examine the individual’s role and position in the organisation, his or her own activities, as well as related issues as outlined in paragraph 19 above.

27. As acts of hijacking will almost certainly qualify as a “serious crime” under Article 1F(b), only the most compelling of circumstances can justify non‑exclusion. Acts of torture are prohibited under in‑ternational law. Depending on the context, they will generally lead to exclusion under Article 1F.

28. The exclusion clauses apply in principle to minors, but only if they have reached the age of criminal responsibility and possess the mental capacity to be held responsible for the crime in question. Given the vulnerability of children, great care should be exercised in considering exclusion with respect to a minor and defences such as duress should in particular be examined carefully. Where UNHCR conducts refugee status determination under its mandate, all such cases should be referred to Head‑quarters before a final decision is made.

29. Where the main applicant is excluded from refugee status, the dependants will need to establish their own grounds for refugee status. If the latter are recognised as refugees, the excluded individual is not able to rely on the right to family unity in order to secure protection or assistance as a refugee.

30. The exclusion clauses can also apply in situations of mass influx, although in practice the indi‑vidual screening required may cause operational and practical difficulties. Nevertheless, until such screening can take place, all persons should receive protection and assistance, subject of course to the separation of armed elements from the civilian refugee population.

6 For instruments pertaining to terrorism, see Annex D of the Background Note.

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31. Given the grave consequences of exclusion, it is essential that rigorous procedural safeguards are built into the exclusion determination procedure. Exclusion decisions should in principle be dealt with in the context of the regular refugee status determination procedure and not in either admissibility or accelerated procedures, so that a full factual and legal assessment of the case can be made. The exceptional nature of Article 1F suggests that inclusion should generally be consid‑ered before exclusion, but there is no rigid formula. Exclusion may exceptionally be considered without particular reference to inclusion issues (i) where there is an indictment by an internation‑al criminal tribunal; (ii) in cases where there is apparent and readily available evidence pointing strongly towards the applicant’s involvement in particularly serious crimes, notably in prominent Article 1F(c) cases, and (iii) at the appeal stage in cases where exclusion is the question at issue.

32. Specialised exclusion units within the institution responsible for refugee status determina‑tion could be set up to handle exclusion cases to ensure that they are dealt with in an expedi‑tious manner. It may be prudent to defer decisions on exclusion until completion of any domestic criminal proceedings, as the latter may have significant implications for the asylum claim. In general, however, the refugee claim must be determined in a final decision before execution of any extradition order.

33. At all times the confidentiality of the asylum application should be respected. In exceptional circumstances, contact with the country of origin may be justified on national security grounds, but even then the existence of the asylum application should not be disclosed.

34. The burden of proof with regard to exclusion rests with the State (or UNHCR) and, as in all refugee status determination proceedings, the applicant should be given the benefit of the doubt. Where, however, the individual has been indicted by an international criminal tribunal, or where individual responsibility for actions which give rise to exclusion is presumed, as indicated in para‑graph 19 of these Guidelines, the burden of proof is reversed, creating a rebuttable presumption of excludability.

35. In order to satisfy the standard of proof under Article 1F, clear and credible evidence is re‑quired. It is not necessary for an applicant to have been convicted of the criminal offence, nor does the criminal standard of proof need to be met. Confessions and testimony of witnesses, for example, may suffice if they are reliable. Lack of cooperation by the applicant does not in itself es‑tablish guilt for the excludable act in the absence of clear and convincing evidence. Consideration of exclusion may, however, be irrelevant if non‑cooperation means that the basics of an asylum claim cannot be established.

36. Exclusion should not be based on sensitive evidence that cannot be challenged by the individ‑ual concerned. Exceptionally, anonymous evidence (where the source is concealed) may be relied upon but only where this is absolutely necessary to protect the safety of witnesses and the asy‑lum‑seeker’s ability to challenge the substance of the evidence is not substantially prejudiced. Se‑cret evidence or evidence considered in camera (where the substance is also concealed) should not be relied upon to exclude. Where national security interests are at stake, these may be protected by introducing procedural safeguards which also respect the asylum‑seeker’s due process rights.

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Distr. GENERAL HCR/GIP/04/06 28 April 2004 Original: ENGLISH


Religion‑Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees

UNHCR issues these Guidelines pursuant to its mandate, as contained in the 1950 Statute of the Office of the United Nations High Commissioner for Refugees, in conjunction with Article 35 of the 1951 Convention relating to the Status of Refugees and Article II of its 1967 Protocol. These Guide‑lines complement the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (re‑edited, Ge‑neva, January 1992). They are informed, inter alia, by a roundtable organised by UNHCR and the Church World Service in Baltimore, Maryland, United States, in October 2002, as well as by an analysis of relevant State practice and international law.


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I. INTRODUCTION

1. Claims to refugee status based on religion can be among the most complex. Decision‑ makers have not always taken a consistent approach, especially when applying the term “religion” contained in the refugee definition of the 1951 Convention relating to the Status of Refugees and when determining what constitutes “persecution” in this context. Religion‑based refugee claims may overlap with one or more of the other grounds in the refugee definition or, as can often happen, they may involve post‑departure conversions, that is, sur place claims. While these Guidelines do not purport to offer a definitive definition of “religion”, they provide decision‑makers with guiding parameters to facilitate refugee status determination in such cases.

2. The right to freedom of thought, conscience and religion is one of the fundamental rights and free‑doms in international human rights law. In determining religion‑based claims, it is therefore useful, inter alia, to draw on Article 18 of the 1948 Universal Declaration of Human Rights (the “Universal Declaration”) and Articles 18 and 27 of the 1966 International Covenant on Civil and Political Rights (the “International Covenant”). Also relevant are the General Comments issued by the Human Rights Committee,1 the 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination based on Religion or Belief, the 1992 Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities and the body of reports of the Special Rapporteur on Religious Intolerance.2 These international human rights standards provide guidance in defining the term “religion” also in the context of international refugee law, against which action taken by States to restrict or prohibit certain practices can be examined.


A. Defining “religion”

3. The refugee definition contained in Article 1A(2) of the 1951 Convention states:

A. For the purposes of the present Convention, the term “refugee” shall apply to any person who: …

(2) … owing to well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

4. The travaux préparatoires of the 1951 Convention show that religion‑based persecution formed an integral and accepted part of the refugee definition throughout the drafting process. There was, however, no attempt to define the term as such.3 No universally accepted definition of “religion” ex‑ists, but the instruments mentioned in paragraph 2 above certainly inform the interpretation of the term “religion” in the international refugee law context. Its use in the 1951 Convention can therefore be taken to encompass freedom of thought, conscience or belief.4 As the Human Rights Committee notes, “religion” is “not limited … to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions”.5 It also broadly covers acts of failing or refusing to observe a religion or to hold any particular religious belief. The term is not, how‑ever, without limits and international human rights law foresees a number of legitimate boundaries on the exercise of religious freedom as outlined in greater detail in paragraphs 15–16 below.1 See, in particular, Human Rights Committee, General Comment No. 22, adopted 20 July 1993, UN doc. CCPR/C/21/Rev.1/ ADD.4, 27 September 1993.2 The latter can be found at http://www.unhchr.ch/huridocda/huridoca.nsf/FramePage/intolerance+En?OpenDocument. Relevant regional instruments include Article 9 of the 1950 European Convention on Human Rights; Article 12 of the 1969 American Convention on Human Rights; Article 8 of the 1981 African Charter on Human and Peoples’ Rights.3 A key source in States’ deliberations was the refugee definition set out in the 1946 Constitution of the International Refugee Organisation (IRO). This included those expressing valid objections to return because of a fear of persecution on grounds of “race, religion, nationality or political opinions”. (A fifth ground, membership of a particular social group, was approved later in the negotiating process for the 1951 Convention.)4 See, also, UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 1979, Geneva, re‑edited 1992 (hereafter “UNHCR, Handbook”), para. 71.5 Human Rights Committee, General Comment No. 22, above note 1, para. 2.

http://www.unhchr.ch/huridocda/huridoca.nsf/FramePage/intolerance%2BEn?OpenDocument

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5. Claims based on “religion” may involve one or more of the following elements:

a. religion as belief (including non‑belief);

b. religion as identity;

c. religion as a way of life.

6. “Belief”, in this context, should be interpreted so as to include theistic, nontheistic and atheistic beliefs. Beliefs may take the form of convictions or values about the divine or ultimate reality or the spiritual destiny of humankind. Claimants may also be considered heretics, apostates, schismatic, pagans or superstitious, even by other adherents of their religious tradition and be persecuted for that reason.

7. “Identity” is less a matter of theological beliefs than membership of a community that observes or is bound together by common beliefs, rituals, traditions, ethnicity, nationality, or ancestry. A claimant may identify with, or have a sense of belonging to, or be identified by others as belonging to, a particular group or community. In many cases, persecutors are likely to target religious groups that are different from their own because they see that religious identity as part of a threat to their own identity or legitimacy.

8. For some individuals, “religion” is a vital aspect of their “way of life” and how they relate, either completely or partially, to the world. Their religion may manifest itself in such activities as the wearing of distinctive clothing or observance of particular religious practices, including observing religious holidays or dietary requirements. Such practices may seem trivial to non‑adherents, but may be at the core of the religion for the adherent concerned.

9. Establishing sincerity of belief, identity and/or a certain way of life may not necessarily be rele‑vant in every case.6 It may not be necessary, for instance, for an individual (or a group) to declare that he or she belongs to a religion, is of a particular religious faith, or adheres to religious practices, where the persecutor imputes or attributes this religion, faith or practice to the individual or group. As is discussed further below in paragraph 31, it may also not be necessary for the claimant to know or understand anything about the religion, if he or she has been identified by others as be‑longing to that group and fears persecution as a result. An individual (or group) may be persecuted on the basis of religion, even if the individual or other members of the group adamantly deny that their belief, identity and/or way of life constitute a “religion”.

10. Similarly, birth into a particular religious community, or a close correlation between race and/or ethnicity on the one hand and religion on the other could preclude the need to enquire into the adherence of an individual to a particular faith or the bona fides of a claim to membership of that community, if adherence to that religion is attributed to the individual.

B. Well‑founded fear of persecution

a) General

11. The right to freedom of religion includes the freedom to manifest one’s religion or belief, either individually or in community with others and in public or private in worship, observance, practice and teaching.7 The only circumstances under which this freedom may be restricted are set out in Article 18(3) of the International Covenant, as described in paragraphs 15–16 below.

12. Persecution for reasons of religion may therefore take various forms. Depending on the particular circumstances of the case, including the effect on the individual concerned, examples could include prohibition of membership of a religious community, of worship in community with others in public

6 For further analysis of credibility issues, see paras. 28–33 below.7 See Universal Declaration, Article 18 and International Covenant, Article 18(1).

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or in private, of religious instruction, or serious measures of discrimination imposed on individuals be‑cause they practise their religion, belong to or are identified with a particular religious community, or have changed their faith.8 Equally, in communities in which a dominant religion exists or where there is a close correlation between the State and religious institutions, discrimination on account of one’s failure to adopt the dominant religion or to adhere to its practices, could amount to persecution in a particular case.9 Persecution may be inter‑religious (directed against adherents or communities of differ‑ent faiths), intra‑religious (within the same religion, but between different sects, or among members of the same sect), or a combination of both.10 The claimant may belong to a religious minority or majority. Religion‑based claims may also be made by individuals in marriages of mixed religions.

13. Applying the same standard as for other Convention grounds, religious belief, identity, or way of life can be seen as so fundamental to human identity that one should not be compelled to hide, change or renounce this in order to avoid persecution.11 Indeed, the Convention would give no pro‑tection from persecution for reasons of religion if it was a condition that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors. Bearing witness in words and deeds is often bound up with the existence of religious convictions.12

14. Each claim requires examination on its merits on the basis of the individual’s situation. Rele‑vant areas of enquiry include the individual profile and personal experiences of the claimant, his or her religious belief, identity and/or way of life, how important this is for the claimant, what effect the restrictions have on the individual, the nature of his or her role and activities within the reli‑gion, whether these activities have been or could be brought to the attention of the persecutor and whether they could result in treatment rising to the level of persecution. In this context, the well‑founded fear “need not necessarily be based on the applicant’s own personal experience”. What, for example, happened to the claimant’s friends and relatives, other members of the same religious group, that is to say to other similarly situated individuals, “may well show that his [or her] fear that sooner or later he [or she] also will become a victim of persecution is well‑founded”.13 Mere membership of a particular religious community will normally not be enough to substantiate a claim to refugee status. As the UNHCR Handbook notes, there may, however, be special circumstances where mere membership suffices, particularly when taking account of the overall political and reli‑gious situation in the country of origin, which may indicate a climate of genuine insecurity for the members of the religious community concerned.

b) Restrictions or limitations on the exercise of religious freedom

15. Article 18(3) of the International Covenant permits restrictions on the “freedom to manifest one’s religion or beliefs” if these limits “are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”. As the Human Rights Committee notes: “Limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated. Restrictions may not be imposed for discriminatory purposes or applied in a discrimi‑natory manner.”14 In assessing the legitimacy of the restriction or limitation at issue, it is therefore necessary to analyse carefully why and how it was imposed. Permissible restrictions or limitations could include measures to prevent criminal activities (for example, ritual killings), or harmful tra‑ditional practices and/or limitations on religious practices injurious to the best interests of the child, as judged by international law standards. Another justifiable, even necessary, restriction could involve the criminalisation of hate speech, including when committed in the name of religion. The

8 UNHCR, Handbook, above note 4, para. 72.9 In this context, Article 27 of the International Covenant reads: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”10 Interim Report of the Special Rapporteur on Religious Intolerance, “Implementation of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief”, UN doc. A/53/279, 24 August 1998, para. 129.11 See also, UNHCR, “Guidelines on International Protection: ‘Membership of a particular social group’ within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees”, HCR/GIP/02/02, 7 May 2002, para. 6. Similarly, in internal flight or relocation cas‑es, the claimant should not be expected or required to suppress his or her religious views to avoid persecution in the internal flight or relocation area. See UNHCR, “Guidelines on International Protection: ‘Internal Flight or Relocation Alternative’ within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees”, HCR/GIP/03/04, 23 July 2003, paras. 19, 25.12 UNHCR, Handbook, above note 4, para. 73.13 UNHCR, Handbook, above note 4, para. 43.14 See Human Rights Committee, General Comment No. 22, above note 1, para. 8.

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fact that a restriction on the exercise of a religious freedom finds the support of the majority of the population in the claimant’s country of origin and/or is limited to the manifestation of the religion in public is irrelevant.

16. In determining whether restrictions or limitations rise to the level of persecution, the deci‑sion‑maker must not only take into account international human rights standards, including lawful limitations on the exercise of religious freedom, but also evaluate the breadth of the restriction and the severity of any punishment for noncompliance. The importance or centrality of the practice within the religion and/or to the individual personally is also relevant. The decision‑maker should proceed cautiously with such inquiries, taking into account the fact that what may seem trivial to an outsider may be central to the claimant’s beliefs. Where the restricted practice is not important to the individual, but important to the religion, then it is unlikely to rise to the level of persecution without additional factors. By contrast, the restricted religious practice may not be so significant to the religion, but may be particularly important to the individual, and could therefore still constitute persecution on the basis of his or her conscience or belief.

c) Discrimination

17. Religion‑based claims often involve discrimination.15 Even though discrimination for reasons of religion is prohibited under international human rights law, all discrimination does not neces‑sarily rise to the level required for recognition of refugee status. For the purposes of analysing an asylum claim, a distinction should be made between discrimination resulting merely in preferential treatment and discrimination amounting to persecution because, in aggregate or of itself, it seri‑ously restricts the claimant’s enjoyment of fundamental human rights. Examples of discrimination amounting to persecution would include, but are not limited to, discrimination with consequences of a substantially prejudicial nature for the person concerned, such as serious restrictions on the right to earn a livelihood, or to access normally available educational institutions and/or health services. This may also be so where economic measures imposed “destroy the economic existence” of a particular religious group.16

18. The existence of discriminatory laws will not normally in itself constitute persecution, although they can be an important, even indicative, factor which therefore needs to be taken into account. An assessment of the implementation of such laws and their effect is in any case crucial to estab‑lishing persecution. Similarly, the existence of legislation on religious freedom does not of itself mean individuals are protected. In many cases, such legislation may not be implemented in practice or custom or tradition may, for instance, in practice override this.

19. Discrimination may also take the form of restrictions or limitations on religious belief or practice. Restrictions have, for instance, included penalties for converting to a different faith (apostasy) or for proselytising, or for celebrating religious festivals particular to the religion concerned. The compul‑sory registration of religious groups and the imposition of specific regulations governing them to restrict the exercise of freedom of religion or belief can also have a discriminatory aim or results. Such actions are legitimate only if they are “specified by law, objective, reasonable and transparent and, consequently, if they do not have the aim or the result of creating discrimination”.17

d) Forced conversion

20. Forced conversion to a religion is a serious violation of the fundamental human right to free‑dom of thought, conscience and religion and would often satisfy the objective component of per‑secution. The claimant would still need to demonstrate a subjective fear that the conversion would be persecutory to him or her personally. Generally, this would be satisfied if the individual held convictions or faith or had a clear identity or way of life in relation to a different religion, or if he or she had chosen to be disassociated from any religious denomination or community. Where a claim‑ant held no particular religious conviction (including one of atheism) nor a clear identification with

15 See generally, UNHCR, Handbook, above note 4, paras. 54–55.16 UNHCR, Handbook, above note 4, paras. 54 and 63.17 Special Rapporteur on freedom of religion or belief, interim report annexed to Note by the Secretary‑General, “Elimination of All Forms of Religious Intolerance”, UN doc. A/58/296, 19 August 2003, paras. 134–35.

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a particular religion or religious community before the conversion or threat of conversion, it would be necessary to assess the impact of such a conversion on the individual (for example, it may be an act without correlative personal effects).

e) Forced compliance or conformity with religious practices

21. Forced compliance with religious practices might, for example, take the form of mandated reli‑gious education that is incompatible with the religious convictions, identity or way of life of the child or the child’s parents.18 It might also involve an obligation to attend religious ceremonies or swear an oath of allegiance to a particular religious symbol. In determining whether such forced compliance constitutes persecution, the policies or acts with which the person or group is required to comply, the extent to which they are contrary to the person’s belief, identity or way of life and the punishment for non‑compliance should be examined. Such forced compliance could rise to the level of persecution if it becomes an intolerable interference with the individual’s own religious belief, identity or way of life and/or if non‑compliance would result in disproportionate punishment.

22. Forced compliance may also involve the imposition of a particular criminal or civil legal code purported to be based on a religious doctrine to which non‑observers might object. Where such a code contains discriminatory substantive or procedural safeguards and especially where it imposes different levels of punishment upon adherents and non‑adherents, it could well be regarded as per‑secutory. Where the law imposes disproportionate punishment for breaches of the law (for example, imprisonment for blasphemy or practising an alternative religion, or death for adultery), whether or not for adherents of the same religion, it would constitute persecution. Such cases are more common where there is limited or no separation between the State and the religion.

23. A specific religious code may be persecutory not just when enforced against non‑ observers, but also when applied to dissidents within or members of the same faith. The enforcement of an‑ti‑blasphemy laws, for example, can often be used to stifle political debate among co‑religionists and could constitute persecution on religious and/or political grounds even when enforced against members of the same religion.

C. Special considerations

a) Gender

24. Particular attention should be paid to the impact of gender on religion‑based refugee claims, as women and men may fear or suffer persecution for reasons of religion in different ways to each other. Clothing requirements, restrictions on movement, harmful traditional practices, or unequal or discriminatory treatment, including subjection to discriminatory laws and/or punishment, may all be relevant.19 In some countries, young girls are pledged in the name of religion to perform traditional slave duties or to provide sexual services to the clergy or other men. They may also be forced into underage marriages, punished for honour crimes in the name of religion, or subjected to forced genital mutilation for religious reasons. Others are offered to deities and subsequently bought by individuals believing that they will be granted certain wishes. Women are still identified as “witches” in some communities and burned or stoned to death.20 These practices may be culturally condoned in the claimant’s community of origin but still amount to persecution. In addition, individuals may be per‑secuted because of their marriage or relationship to someone of a different religion than their own.

18 This would be likely also to interfere with the undertaking of States to respect the liberty of parents or legal guardians to ensure the religious and moral education of their children in conformity with their own convictions under Article 18(4) of the International Covenant.19 For more information, see UNHCR, “Guidelines on International Protection: Gender‑Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees”, HCR/GIP/02/01, 7 May 2002, especially paras. 25–26.20 For description of these practices, see “Integration of the Human Rights of Women and the Gender Perspective Violence against Women, Report of the Special Rapporteur on violence against women, its causes and consequences, Ms Radhika Coomaraswamy, submitted in accordance with Commission on Human Rights resolution 2001/49, Cultural practices in the family that are violent towards women”, E/CN.4/2002/83, 31 January 2002, available at http://www.unhchr.ch/huridocda/huridoca.nsf/0/42E7191FAE543562C1256BA7004E963C/$ File/G0210428.doc?OpenElement; “Droits Civils et Politiques et, Notamment: Intolérance Religieuse”, Rapport soumis par M. Abdelfattah Amor, Rapporteur spécial, conformément àla résolution 2001/42 de la Commission des droits de l’homme, Additif: “Étude sur la liberté de religion ou de conviction et la condition de la femme au regard de la religion et des traditions”, E/CN.4/2002/73/Add.2, 5 avril 2002, available (only in French) at http://www.unhchr.ch/huridocda/huridoca.nsf/2848af408d01e‑c0ac1256609004e770b/9fa99a4d3f9eade5c1256b9e00510d71?Open Document&Highlight=2,E%2FCN.4%2F2002%2F73%2FAdd.2.

http://www.unhchr.ch/huridocda/huridoca.nsf/0/42E7191FAE543562C1256BA7004E963C/%24 File/G0210428.doc?OpenElement

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When, due to the claimant’s gender, State actors are unwilling or unable to protect the claimant from such treatment, it should not be mistaken as a private conflict, but should be considered as valid grounds for refugee status.

b) Conscientious objection

25. A number of religions or sects within particular religions have abstention from military service as a central tenet and a significant number of religion‑based claimants seek protection on the basis of refusal to serve in the military. In countries where military service is compulsory, failure to per‑form this duty is frequently punishable by law. Moreover, whether military service is compulsory or not, desertion is invariably a criminal offence.21

26. Where military service is compulsory, refugee status may be established if the refusal to serve is based on genuine political, religious, or moral convictions, or valid reasons of conscience.22 Such claims raise the distinction between prosecution and persecution. Prosecution and punishment pursuant to a law of general application is not generally considered to constitute persecution,23 although there are some notable exceptions. In conscientious objector cases, a law purporting to be of general application may, depending on the circumstances, nonetheless be persecutory where, for instance, it impacts differently on particular groups, where it is applied or enforced in a discriminatory manner, where the punishment itself is excessive or disproportionately severe, or where the military service cannot reasonably be expected to be performed by the individual be‑cause of his or her genuine beliefs or religious convictions. Where alternatives to military service, such as community service, are imposed there would not usually be a basis for a claim. Having said this, some forms of community service may be so excessively burdensome as to constitute a form of punishment, or the community service might require the carrying out of acts which clearly also defy the claimant’s religious beliefs. In addition, the claimant may be able to establish a claim to refugee status where the refusal to serve in the military is not occasioned by any harsh penalties, but the individual has a well‑founded fear of serious harassment, discrimination or violence by oth‑er individuals (for example, soldiers, local authorities, or neighbours) for his or her refusal to serve.


a) General

27. The following are some general points of particular relevance to examining religion‑based ref‑uge claims:

a. Religious practices, traditions or beliefs can be complex and may vary from one branch or sect of a religion to another or from one country or region to another. For this reason, there is a need for reliable, accurate, up‑to‑date, and country‑ or region‑ specific as well as branch‑ or sect‑specific information.

b. Refugee status determinations based on religion could also benefit from the assistance of inde‑pendent experts with particularised knowledge of the country, region and context of the particular claim and/or the use of corroborating testimony from other adherents of the same faith.

c. Decision‑makers need to be objective and not arrive at conclusions based solely upon their own experiences, even where they may belong to the same religion as the claimant. General assumptions about a particular religion or its adherents should be avoided.

d. In assessing religion‑based claims, decision‑makers need to appreciate the frequent inter‑play between religion and gender, race, ethnicity, cultural norms, identity, way of life and other factors.

21 See generally, UNHCR, Handbook, above note 4, paras. 167–74.22 UNHCR, Handbook, above note 4, para. 170.23 UNHCR, Handbook, above note 4, para. 55–60.

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e. In the selection of interviewers and interpreters, there should be sensitivity regarding any cultur‑al, religious or gender aspects that could hinder open communication.24

f. Interviewers should also be aware of the potential for hostile biases toward the claimant by an interpreter, either because he or she shares the same religion or is not of the same religion, or of any potential fear of the same by the claimant, which could adversely affect his or her testimony. As with all refugee claims, it can be critical that interpreters are well‑versed in the relevant terminology.

b) Credibility

28. Credibility is a central issue in religion‑based refugee claims. While decision‑makers will often find it helpful during research and preparation to list certain issues to cover during an interview, exten‑sive examination or testing of the tenets or knowledge of the claimant’s religion may not always be necessary or useful. In any case, knowledge tests need to take account of individual circumstances, particularly since knowledge of a religion may vary considerably depending on the individual’s social, economic or educational background and/or his or her age or sex.

29. Experience has shown that it is useful to resort to a narrative form of questioning, including through open‑ended questions allowing the claimant to explain the personal significance of the re‑ligion to him or her, the practices he or she has engaged in (or has avoided engaging in out of a fear of persecution), or any other factors relevant to the reasons for his or her fear of being persecuted. Information may be elicited about the individual’s religious experiences, such as asking him or her to describe in detail how he or she adopted the religion, the place and manner of worship, or the rituals engaged in, the significance of the religion to the person, or the values he or she believes the religion espouses. For example, the individual may not be able to list the Ten Commandments or name the Twelve Imams, but may be able to indicate an understanding of the religion’s basic tenets more gen‑erally. Eliciting information regarding the individual’s religious identity or way of life will often be more appropriate and useful and may even be necessary. It should also be noted that a claimant’s detailed knowledge of his or her religion does not necessarily correlate with sincerity of belief.

30. As indicated in paragraph 9 above, individuals may be persecuted on the basis of their religion even though they have little or no substantive knowledge of its tenets or practices. A lack of knowl‑edge may be explained by further research into the particular practices of that religion in the area in question or by an understanding of the subjective and personal aspects of the claimant’s case. For instance, the level of repression against a religious group in a society may severely restrict the ability of an individual to study or practise his or her religion. Even when the individual is able to receive religious education in a repressive environment, it may not be from qualified leaders. Women, in par‑ticular, are often denied access to religious education. Individuals in geographically remote commu‑nities may espouse adherence to a particular religion and face persecution as a result, yet have little knowledge of its formal practices. Over time, communities may adapt particular religious practices or faith to serve their own needs, or combine them with their more traditional practices and beliefs, especially where the religion has been introduced into a community with long‑established traditions. For example, the claimant may not be able to distinguish between those practices which are Christian and those which are animist.

31. Less formal knowledge may also be required of someone who obtained a particular religion by birth and who has not widely practised it. No knowledge is required where a particular religious belief or adherence is imputed or attributed to a claimant.

32. Greater knowledge may be expected, however, of individuals asserting they are religious leaders or who have undergone substantial religious instruction. It is not necessary for such teaching or training to conform fully to objectively tested standards, as these may vary from region to region and country to country, but some clarification of their role and the significance of certain practices or rites to the reli‑gion would be relevant. Even claimants with a high level of education or schooling in their religion may not have knowledge of teachings and practices of a more complex, formal or obscure nature.

24 See also, UNHCR, “Guidelines on Gender‑Related Persecution”, above note 19.

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33. Subsequent and additional interviews may be required where certain statements or claims made by the claimant are incompatible with earlier statements or with general understandings of the religious practices of other members of that religion in the area or region in question. Claimants must be given an opportunity to explain any inconsistencies or discrepancies in their story.

c) Conversion post departure

34. Where individuals convert after their departure from the country of origin, this may have the effect of creating a sur place claim.25 In such situations, particular credibility concerns tend to arise and a rigorous and in depth examination of the circumstances and genuineness of the conversion will be necessary. Issues which the decision‑maker will need to assess include the nature of and connection between any religious convictions held in the country of origin and those now held, any disaffection with the religion held in the country of origin, for instance, because of its position on gender issues or sexual orientation, how the claimant came to know about the new religion in the country of asylum, his or her experience of this religion, his or her mental state and the existence of corroborating evidence regarding involvement in and membership of the new religion.

35. Both the specific circumstances in the country of asylum and the individual case may justify ad‑ditional probing into particular claims. Where, for example, systematic and organised conversions are carried out by local religious groups in the country of asylum for the purposes of accessing resettlement options, and/or where “coaching” or “mentoring” of claimants is commonplace, test‑ing of knowledge is of limited value. Rather, the interviewer needs to ask open questions and try to elicit the motivations for conversion and what effect the conversion has had on the claimant’s life. The test remains, however, whether he or she would have a well‑founded fear of persecution on a Convention ground if returned. Regard should therefore be had as to whether the conversion may come to the notice of the authorities of the person’s country of origin and how this is likely to be viewed by those authorities.26 Detailed country of origin information is required to determine whether a fear of persecution is objectively well‑founded.

36. So‑called “self‑serving” activities do not create a well‑founded fear of persecution on a Con‑vention ground in the claimant’s country of origin, if the opportunistic nature of such activities will be apparent to all, including the authorities there, and serious adverse consequences would not result if the person were returned. Under all circumstances, however, consideration must be given as to the consequences of return to the country of origin and any potential harm that might justify refugee status or a complementary form of protection. In the event that the claim is found to be self‑serving but the claimant nonetheless has a well‑founded fear of persecution on return, inter‑national protection is required. Where the opportunistic nature of the action is clearly apparent, however, this could weigh heavily in the balance when considering potential durable solutions that may be available in such cases, as well as, for example, the type of residency status.

25 Such a claim may also arise if a claimant marries someone of another religion in the country of asylum or educates his or her children in that other religion there and the country of origin would use this as the basis for persecution.26 See UNHCR, Handbook, above note 4, para. 96.

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Distr. GENERAL HCR/GIP/06/07 7 April 2006 Original: ENGLISH


The application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to victims of trafficking and persons at risk of being trafficked

UNHCR issues these Guidelines pursuant to its mandate, as contained in the 1950 Statute of the Office of the United Nations High Commissioner for Refugees in conjunction with Article 35 of the 1951 Convention relating to the Status of Refugees and Article II of its 1967 Protocol. These Guide‑lines complement the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (re‑edited, Ge‑neva, January 1992). They should additionally be read in conjunction with UNHCR’s Guidelines on International Protection on gender‑related persecution within the context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (HCR/GIP/02/01) and on “membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (HCR/ GIP/02/02), both of 7 May 2002.

These Guidelines are intended to provide interpretative legal guidance for governments, legal practitioners, decision‑makers and the judiciary, as well as for UNHCR staff carrying out refugee status determination in the field.

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I. INTRODUCTION

1. Trafficking in persons, the primary objective of which is to gain profit through the exploitation of human beings, is prohibited by international law and criminalized in the national legislation of a growing number of States. Although the range of acts falling within the definition of trafficking varies among national juris‑dictions, States have a responsibility to combat trafficking and to protect and assist victims of trafficking.

2. The issue of trafficking has attracted substantial attention in recent years, but it is not a modern phenomenon. Numerous legal instruments dating from the late nineteenth century onwards have sought to address various forms and manifestations of trafficking.1 These instruments remain in force and are relevant to the contemporary understanding of trafficking and how best to combat it. The 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (hereinafter the “Trafficking Protocol”)2 supplementing the 2000 United Nations Convention against Transnational Organized Crime (hereinafter the “Convention against Transnational Crime”)3 provides an international definition of trafficking. This represents a crucial step forward in efforts to combat trafficking and ensure full respect for the rights of individuals affected by trafficking.

3. Trafficking in the context of the sex trade is well documented and primarily affects women and children who are forced into prostitution and other forms of sexual exploitation.4 Trafficking is not, however, limited to the sex trade or to women. It also includes, at a minimum, forced labour or servic‑es, slavery or practices similar to slavery, servitude or the removal of organs.5 Depending on the cir‑cumstances, trafficking may constitute a crime against humanity and, in armed conflict, a war crime.6 A common characteristic of all forms of trafficking is that victims are treated as merchandise, “owned” by their traffickers, with scant regard for their human rights and dignity.

4. In some respects, trafficking in persons resembles the smuggling of migrants, which is the subject of another Protocol to the Convention against Transnational Crime.7 As with trafficking, the smuggling of migrants often takes place in dangerous and/or degrading conditions involving human rights abuses. It is nevertheless essentially a voluntary act entailing the payment of a fee to the smuggler to provide a specific service. The relationship between the migrant and the smuggler normally ends either with the arrival at the migrant’s destination or with the individual being abandoned en route. Victims of trafficking are distinguished from migrants who have been smuggled by the protracted nature of the exploitation they endure, which includes serious and ongoing abuses of their human rights at the hands of their traffickers. Smuggling rings and trafficking rings are nevertheless often closely related, with both preying on the vulnerabilities of people seeking international protection or access to labour markets abroad. Irregular migrants relying on the services of smugglers whom they have willingly con‑tracted may also end up as victims of trafficking, if the services they originally sought metamorphose into abusive and exploitative trafficking scenarios.

5. UNHCR’s involvement with the issue of trafficking is essentially twofold. Firstly, the Office has a responsibility to ensure that refugees, asylum‑seekers, internally displaced persons (IDPs), stateless persons and other persons of concern do not fall victim to trafficking. Secondly, the Office has a responsibility to ensure that individuals who have been trafficked and who fear being subjected to persecution upon a return to their country of origin, or individuals who fear being trafficked, whose claim to international protection falls within the refugee definition contained in the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (hereinafter “the 1951 Convention”) are recognized as refugees and afforded the corresponding international protection.

1 It has been estimated that between 1815 and 1957 some 300 international agreements were adopted to suppress slavery in its various forms, including for example the 1910 International Convention for the Suppression of the White Slave Traffic, the 1915 Declaration Relative to the Universal Abolition of the Slave Trade, the 1926 Slavery Convention, the 1949 Convention for the Suppression of the Traffick in Persons and of the Exploitation of the Pros‑titution of Others and the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery.2 Entered into force on 25 December 2003.3 Entered into force on 29 September 2003.4 Bearing in mind the prevalence of women and girls amongst the victims of trafficking, gender is a relevant factor in evaluating their claims for refugee status. See further, UNHCR, “Guidelines on International Protection: Gender‑related persecution within the context of Article 1A(2) of the 1951 Con‑vention and/or its 1967 Protocol relating to the Status of Refugees” (hereinafter “UNHCR Guidelines on Gender‑Related Persecution”), HCR/GIP/02/01, 7 May 2002, para. 2.5 See Article 3(a) of the Trafficking Protocol cited in para. 8 below.6 See, for instance, Articles 7(1)(c), 7(1)(g), 7(2)(c) and 8(2)(xxii) of the 1998 Statute of the International Criminal Court, A/ CONF.183/9, which specifically refer to “enslavement”, “sexual slavery” and “enforced prostitution” as crimes against humanity and war crimes.7 The 2000 Protocol against the Smuggling of Migrants by Land, Sea and Air (entered into force on 28 January 2004).

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6. Not all victims or potential victims of trafficking fall within the scope of the refugee definition. To be recognized as a refugee, all elements of the refugee definition have to be satisfied. These Guidelines are intended to provide guidance on the application of Article 1A(2) of the 1951 Con‑vention to victims or potential victims of trafficking. They also cover issues concerning victims of trafficking arising in the context of the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. The protection of victims or potential victims of trafficking as set out in these Guidelines is additional to and distinct from the protection contemplated by Part II of the Trafficking Protocol.8


a) Definitional issues

7. The primary function of the Convention against Transnational Crime and its supplementary Pro‑tocols against Trafficking and Smuggling is crime control. They seek to define criminal activities and guide States as to how best to combat them. In doing so, they nevertheless provide helpful guidance on some aspects of victim protection and therefore constitute a useful starting point for any analysis of international protection needs arising as a result of trafficking.

8. Article 3 of the Trafficking Protocol reads:

For the purposes of this Protocol:

(a) ‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;

(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;

(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploita‑tion shall be considered ‘trafficking in persons’ even if this does not involve any of the means set forth in subparagraph (a) of this article;

(d) ‘Child’ shall mean any person under eighteen years of age.

9. The Trafficking Protocol thus defines trafficking by three essential and interlinked sets of elements:

The act: recruitment, transportation, transfer, harbouring or receipt of persons;

The means: by threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power, abuse of a position of vulnerability, or of giving or receiving of payments or benefits to achieve the consent of a person having control over the victim;

The purpose: exploitation of the victim, including, at a minimum, the exploitation of the prostitu‑tion of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.9

8 Part II of the Trafficking Protocol concerns the protection of victims of trafficking. It covers areas such as ensuring the protection of privacy and identity of the victims; providing victims with information on relevant court and administrative proceedings, as well as assistance to enable them to present their views and concerns at appropriate stages of criminal proceedings against offenders; providing victims with support for physical, psychological and social recovery; permitting victims to remain in the territory temporarily or permanently; repatriating victims with due regard for their safety; and other measures.9 For the purposes of these Guidelines, the Trafficking Protocol definition is used as it represents the current international consensus on the meaning of traf‑ficking. In order to understand the legal meaning of terms used within the Protocol definition fully, it is nevertheless necessary to refer further to other legal instruments, for example, a number of International Labour Organization Conventions, including the 1930 Convention No. 29 on Forced or Compulsory Labour, the 1957 Convention No. 105 on the Abolition of Forced Labour, the 1975 Convention No. 143 on Migrant Workers (Supplementary Provisions) and the 1999 Convention No. 182 on the Worst Forms of Child Labour. These are referred to in the first report of the Special Rapporteur on trafficking in persons, especially women and children, Ms Sigma Huda, E/CN.4/2005/71, 22 December 2004, para. 22. Her second report entitled “Integration of the Human Rights of Women and a Gender Perspective”, E/CN.4/2006/62, 20 February 2006, goes into this issue in further detail in paras. 31–45. The Special Rapporteur was appointed in 2004 pursuant to a new mandate created by the 60th Session of the Commission on Human Rights (Resolution 2004/110).

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10. An important aspect of this definition is an understanding of trafficking as a process comprising a number of interrelated actions rather than a single act at a given point in time. Once initial control is secured, victims are generally moved to a place where there is a market for their services, often where they lack language skills and other basic knowledge that would enable them to seek help. While these actions can all take place within one country’s borders,10 they can also take place across borders with the recruitment taking place in one country and the act of receiving the victim and the exploitation taking place in another. Whether or not an international border is crossed, the intention to exploit the individual concerned underpins the entire process.

11. Article 3 of the Trafficking Protocol states that where any of the means set forth in the definition are used, the consent of the victim to the intended exploitation is irrelevant.11 Where the victim is a child,12 the question of consent is all the more irrelevant as any recruitment, transportation, transfer, harbouring or receipt of children for the purpose of exploitation is a form of trafficking regardless of the means used.

12. Some victims or potential victims of trafficking may fall within the definition of a refugee con‑tained in Article 1A(2) of the 1951 Convention and may therefore be entitled to international refugee protection. Such a possibility is not least implicit in the saving clause contained in Article 14 of the Trafficking Protocol, which states:

1. Nothing in this Protocol shall affect the rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non‑refoulement as contained therein.13

2. The measures set forth in this Protocol shall be interpreted and applied in a way that is not discriminatory to persons on the ground that they are victims of trafficking in persons. The interpretation and application of those measures shall be consistent with internationally recognized principles of non‑discrimination.

13. A claim for international protection presented by a victim or potential victim of trafficking can arise in a number of distinct sets of circumstances. The victim may have been trafficked abroad, may have escaped her or his traffickers and may seek the protection of the State where she or he now is. The victim may have been trafficked within national territory, may have escaped from her or his traffickers and have fled abroad in search of international protection. The individual concerned may not have been trafficked but may fear becoming a victim of trafficking and may have fled abroad in search of international protection. In all these instances, the individual concerned must be found to have a “well‑ founded fear of persecution” linked to one or more of the Convention grounds in order to be recognized as a refugee.

b) Well‑founded fear of persecution

14. What amounts to a well‑founded fear of persecution will depend on the particular circumstances of each individual case.14 Persecution can be considered to involve serious human rights violations, including a threat to life or freedom, as well as other kinds of serious harm or intolerable predicament, as assessed in the light of the opinions, feelings and psychological make‑up of the asylum applicant.

10 The Council of Europe Convention on Action against Trafficking in Human Beings, opened for signature in May 2005, addresses the question of traf‑ficking within national borders directly.11 Article 3(b) of the Trafficking Protocol. See also, the second report of the Special Rapporteur on trafficking in persons, cited above in footnote 9, paras. 37–43 on the “irrelevance of consent”.12 Article 3(c) of the Trafficking Protocol follows the 1989 Convention on the Rights of the Child in defining a child as “any person under eighteen years of age”.13 The Agenda for Protection, A/AC.96/965/Add.1, 2002, Goal 2, Objective 2, calls upon States to ensure that their asylum systems are open to receiv‑ing claims from individual victims of trafficking. This interpretation of the Article 14 saving clause as imposing an obligation on States to consider the international protection needs of victims of trafficking is strengthened by paragraph 377 of the Explanatory Report accompanying the Council of Europe Convention. This states in relation to Article 40 of that Convention:The fact of being a victim of trafficking in human beings cannot preclude the right to seek and enjoy asylum and Parties shall ensure that victims of trafficking have appropriate access to fair and efficient asylum procedures. Parties shall also take whatever steps are necessary to ensure full respect for the principle of non‑refoulement.Additionally, the Office of the High Commissioner for Human Rights (OHCHR) “Recommended Principles and Guidelines on Human Rights and Human Trafficking” presented to the Economic and Social Council as an addendum to the report of the United Nations High Commissioner for Human Rights, E/2002/68/Add. 1, 20 May 2002, available at http:www.ohchr.org/english/about/ publications/docs/trafficking.doc, address in Guideline 2.7 the im‑portance of ensuring that procedures and processes are in place for the consideration of asylum claims from trafficked persons (as well as from smuggled asylum‑seekers) and that the principle of non‑refoulement is respected and upheld at all times.14 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, 1979, re‑edited 1992, para. 51 (hereinafter the “UNHCR, Handbook”).

http://www.ohchr.org/english/about/publications/docs/trafficking.doc

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15. In this regard, the evolution of international law in criminalizing trafficking can help deci‑sion‑makers determine the persecutory nature of the various acts associated with trafficking. Asy‑lum claims lodged by victims of trafficking or potential victims of trafficking should thus be exam‑ined in detail to establish whether the harm feared as a result of the trafficking experience, or as a result of its anticipation, amounts to persecution in the individual case. Inherent in the trafficking experience are such forms of severe exploitation as abduction, incarceration, rape, sexual enslave‑ment, enforced prostitution, forced labour, removal of organs, physical beatings, starvation, the deprivation of medical treatment. Such acts constitute serious violations of human rights which will generally amount to persecution.

16. In cases where the trafficking experience of the asylum applicant is determined to be a one‑off past experience, which is not likely to be repeated, it may still be appropriate to recognize the individual concerned as a refugee if there are compelling reasons arising out of previous perse‑cution, provided the other interrelated elements of the refugee definition are fulfilled. This would include situations where the persecution suffered during the trafficking experience, even if past, was particularly atrocious and the individual is experiencing ongoing traumatic psychological ef‑fects which would render return to the country of origin intolerable. In other words, the impact on the individual of the previous persecution continues. The nature of the harm previously suffered will also impact on the opinions, feelings and psychological make‑up of the asylum applicant and thus influence the assessment of whether any future harm or predicament feared would amount to persecution in the particular case.

17. Apart from the persecution experienced by individuals in the course of being trafficked, they may face reprisals and/or possible re‑trafficking should they be returned to the territory from which they have fled or from which they have been trafficked.15 For example, the victim’s cooperation with the authorities in the country of asylum or the country of origin in investigations may give rise to a risk of harm from the traffickers upon return, particularly if the trafficking has been perpetrated by international trafficking networks. Reprisals at the hands of traffickers could amount to persecu‑tion depending on whether the acts feared involve serious human rights violations or other serious harm or intolerable predicament and on an evaluation of their impact on the individual concerned. Reprisals by traffickers could also be inflicted on the victim’s family members, which could render a fear of persecution on the part of the victim well‑founded, even if she or he has not been subjected directly to such reprisals. In view of the serious human rights violations often involved, as described in paragraph 15 above, re‑trafficking would usually amount to persecution.

18. In addition, the victim may also fear ostracism, discrimination or punishment by the family and/or the local community or, in some instances, by the authorities upon return. Such treatment is particularly relevant in the case of those trafficked into prostitution. In the individual case, severe ostracism, discrimination or punishment may rise to the level of persecution, in particular if aggra‑vated by the trauma suffered during, and as a result of, the trafficking process. Where the individ‑ual fears such treatment, her or his fear of persecution is distinct from, but no less valid than, the fear of persecution resulting from the continued exposure to the violence involved in trafficking scenarios. Even if the ostracism from, or punishment by, family or community members does not rise to the level of persecution, such rejection by, and isolation from, social support networks may in fact heighten the risk of being re‑trafficked or of being exposed to retaliation, which could then give rise to a well‑founded fear of persecution.

c) Women and children victims of trafficking

19. The forcible or deceptive recruitment of women and children for the purposes of forced pros‑titution or sexual exploitation is a form of gender‑related violence, which may constitute persecu‑

15 See, “Report of the Working Group on Contemporary Forms of Slavery on its twenty‑ninth session”, E/CN.4/Sub.2/2004/36, 20 July 2004, Section VII Recommendations adopted at the twenty‑ninth session, p. 16, para. 29. This “[c]alls upon all States to ensure that the protection and support of the victims are at the centre of any anti‑trafficking policy, and specifically to ensure that: (a) No victim of trafficking is removed from the host country if there is a reasonable likelihood that she will be re‑trafficked or subjected to other forms of serious harm, irrespective of whether she decides to cooperate in a prosecution”.

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tion.16 Trafficked women and children can be particularly susceptible to serious reprisals by traffickers after their escape and/or upon return, as well as to a real possibility of being re‑trafficked or of being subjected to severe family or community ostracism and/or severe discrimination.

20. In certain settings, unaccompanied or separated children,17 are especially vulnerable to traffick‑ing.18 Such children may be trafficked for the purposes of irregular adoption. This can occur with or without the knowledge and assent of the child’s parents. Traffickers may also choose to target orphans. In assessing the international protection needs of children who have been trafficked, it is essential that the best interest principle be scrupulously applied.19 All cases involving trafficked chil‑dren require a careful examination of the possible involvement of family members or caregivers in the actions that set the trafficking in motion.

d) Agents of persecution

21. There is scope within the refugee definition to recognize both State and non‑State agents of persecution. While persecution is often perpetrated by the authorities of a country, it can also be perpetrated by individuals if the persecutory acts are “knowingly tolerated by the authorities or if the authorities refuse, or prove unable to offer effective protection”.20 In most situations involving victims or potential victims of trafficking, the persecutory acts emanate from individuals, that is, traffickers or criminal enterprises or, in some situations, family or community members. Under these circumstances, it is also necessary to examine whether the authorities of the country of origin are able and willing to protect the victim or potential victim upon return.

22. Whether the authorities in the country of origin are able to protect victims or potential victims of trafficking will depend on whether legislative and administrative mechanisms have been put in place to prevent and combat trafficking, as well as to protect and assist the victims and on whether these mechanisms are effectively implemented in practice.21 Part II of the Trafficking Protocol requires States to take certain steps with regard to the protection of victims of trafficking, which can be of guidance when assessing the adequacy of protection and assistance provided. Measures relate not only to protecting the privacy and identity of victims of trafficking, but also to their physical, psycho‑logical and social recovery.22 Article 8 of the Trafficking Protocol also requires State Parties, which are facilitating the return of their nationals or permanent residents who have been trafficked, to give due regard to the safety of the individuals concerned when accepting them back. The protection measures set out in Part II of the Trafficking Protocol are not exhaustive and should be read in light of other relevant binding and non‑binding human rights instruments and guidelines.23

23. Many States have not adopted or implemented sufficiently stringent measures to criminalize and prevent trafficking or to meet the needs of victims. Where a State fails to take such reasonable steps

16 See UNHCR Guidelines on Gender‑Related Persecution, above footnote 4, para. 18. The Commission on Human Rights also recognized that such vio‑lence may constitute persecution for the purposes of the refugee definition, when it urged States “to mainstream a gender perspective into all policies and programmes, including national immigration and asylum policies, regulations and practices, as appropriate, in order to promote and protect the rights of all women and girls, including the consideration of steps to recognize gender‑related persecution and violence when assessing grounds for granting refugee status and asylum”. See Resolution 2005/41, Elimination of violence against women, 57th meeting, 19 April 2005, operational para. 22.17 As indicated in the Inter‑agency Guiding Principles on Unaccompanied and Separated Children, 2004, “separated children are those separated from both parents, or from their previous legal or customary primary care‑giver, but not necessarily from other relatives”, while unaccompanied children are “children who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so”.18 There are a number of international instruments which offer specific guidance with respect to the needs and rights of children. These should be given due consideration in assessing the claims of child victims. See, for example, the 1989 Convention on the Rights of the Child, the 2000 Optional Protocol to that Convention, on the sale of children, child prostitution and child pornography, the 1980 Hague Convention No. 28 on the Civil Aspects of Interna‑tional Child Abduction, the 2000 Trafficking Protocol and the 1999 ILO Convention No. 182 on the Prohibition of the Worst Forms of Child Labour. See also, generally, Committee on the Rights of the Child, “General Comment No. 6 (2005) Treatment of Unaccompanied and Separated Children Outside their Country of Origin”, CRC/CG/2005/6, 1 Sept. 2005.19 See, UNHCR Guidelines on Formal Determination of the Best Interests of the Child, provisional release April 2006; UN Children’s Fund (UNICEF), “Guide‑lines for Protection of the Rights of Child Victims of Trafficking”, May 2003 and in the process of being updated.20 See, UNHCR, Handbook, above footnote 14, para. 65; UNHCR, “Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees” (hereinafter “Interpreting Article 1”), April 2001, para. 19; UNHCR Guidelines on Gender‑related Persecution, above footnote 4, para. 19.21 See Part II of the Trafficking Protocol outlined in footnote 8 above.22 Ibid.23 See, United Nations High Commissioner for Human Rights, “Recommended Principles and Guidelines on Human Rights and Human Trafficking”, above footnote 13, which states in Principle No. 2: “States have a responsibility under international law to act with due diligence to prevent trafficking, to inves‑tigate and prosecute traffickers and to assist and protect trafficked persons”. Numerous instruments of a binding and a non‑binding nature highlight the obligation of States to uphold the human rights of victims of trafficking. See, for example, the Council of Europe Convention cited above at footnote 10, the 2002 South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution and the 2003 Organization for Security and Cooperation in Europe (OSCE) Action Plan to Combat Trafficking in Human Beings.

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as are within its competence to prevent trafficking and provide effective protection and assistance to victims, the fear of persecution of the individual is likely to be well‑founded. The mere existence of a law prohibiting trafficking in persons will not of itself be sufficient to exclude the possibility of persecution. If the law exists but is not effectively implemented, or if administrative mechanisms are in place to provide protection and assistance to victims, but the individual concerned is unable to gain access to such mechanisms, the State may be deemed unable to extend protection to the victim, or potential victim, of trafficking.

24. There may also be situations where trafficking activities are de facto tolerated or condoned by the authorities or even actively facilitated by corrupt State officials. In these circumstances, the agent of persecution may well be the State itself, which becomes responsible, whether directly or as a result of inaction, for a failure to protect those within its jurisdiction. Whether this is so will depend on the role played by the officials concerned and on whether they are acting in their per‑sonal capacity outside the framework of governmental authority or on the basis of the position of authority they occupy within governmental structures supporting or condoning trafficking. In the latter case, the persecutory acts may be deemed to emanate from the State itself.

e) Place of persecution

25. In order to come within the scope of Article 1A(2) of the 1951 Convention, the applicant must be outside her or his country of origin and, owing to a well‑founded fear of persecution, be unable or unwilling to avail her‑ or himself of the protection of that country. The requirement of being outside one’s country does not, however, mean that the individual must have left on account of a well‑founded fear of persecution.24 Where this fear arises after she or he has left the country of origin, she or he would be a refugee sur place, providing the other elements in the refugee defi‑nition were fulfilled. Thus, while victims of trafficking may not have left their country owing to a well‑founded fear of persecution, such a fear may arise after leaving their country of origin. In such cases, it is on this basis that the claim to refugee status should be assessed.

26. Whether the fear of persecution arises before leaving the country of origin or after, the location where the persecution takes place is a crucial aspect in correctly assessing asylum claims made by individuals who have been trafficked. The 1951 Convention requires that the refugee demonstrate a well‑founded fear of persecution with regard to her or his country of nationality or habitual resi‑dence. Where someone has been trafficked within her or his own country, or fears being trafficked, and escapes to another in search of international protection, the link between the fear of perse‑cution, the motivation for flight and the unwillingness to return is evident and any international protection needs fall to be determined in terms of the threat posed to the individual should she or he be obliged to return to the country of nationality or habitual residence. If no such well‑founded fear is established in relation to the country of origin, then it would be appropriate for the State from which asylum has been requested to reject the claim to refugee status.

27. The circumstances in the applicant’s country of origin or habitual residence are the main point of reference against which to determine the existence of a well‑founded fear of persecution. Nev‑ertheless, even where the exploitation experienced by a victim of trafficking occurs mainly outside the country of origin, this does not preclude the existence of a well‑founded fear of persecution in the individual’s own country. The trafficking of individuals across international borders gives rise to a complex situation which requires a broad analysis taking into account the various forms of harm that have occurred at different points along the trafficking route. The continuous and intercon‑nected nature of the range of persecutory acts involved in the context of transnational trafficking should be given due consideration. Furthermore, trafficking involves a chain of actors, starting with those responsible for recruitment in the country of origin, through to those who organize and facilitate the transport, transfer and/or sale of victims, through to the final “purchaser”. Each of these actors has a vested interest in the trafficking enterprise and could pose a real threat to the victim. Depending on the sophistication of the trafficking rings involved, applicants may thus have experienced and continue to fear harm in a number of locations, including in countries through

24 See UNHCR, Handbook, above footnote 14, para. 94.

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which they have transited, the State in which the asylum application is submitted and the country of origin. In such circumstances, the existence of a well‑founded fear of persecution is to be evaluated in relation to the country of origin of the applicant.

28. A victim of trafficking who has been determined to be a refugee may additionally fear reprisals, punishment or re‑trafficking in the country of asylum. If a refugee is at risk in her or his country of refuge or has particular needs, which cannot be met in the country of asylum, she or he may need to be considered for resettlement to a third country.25

f) The causal link (“for reasons of”)

29. To qualify for refugee status, an individual’s well‑founded fear of persecution must be related to one or more of the Convention grounds, that is, it must be “for reasons of” race, religion, nationality, membership of a particular social group or political opinion. It is sufficient that the Convention ground be a relevant factor contributing to the persecution; it is not necessary that it be the sole, or even dominant, cause. In many jurisdictions, the causal link (“for reasons of”) must be explicitly established, while in other States, causation is not treated as a separate question for analysis but is subsumed within the holistic analysis of the refugee definition.26 In relation to asylum claims involving trafficking, the difficult issue for a decision‑maker is likely to be linking the well‑founded fear of persecution to a Convention ground. Where the persecutor attributes or imputes a Convention ground to the appli‑cant, this is sufficient to satisfy the causal link.27

30. In cases where there is a risk of being persecuted at the hands of a non‑State actor for reasons related to one of the Convention grounds, the causal link is established, whether or not the absence of State protection is Convention‑related. Alternatively, where a risk of persecution at the hands of a non‑State actor is unrelated to a Convention ground, but the inability or unwillingness of the State to offer protection is for reasons of a Convention ground, the causal link is also established.

31. Trafficking in persons is a commercial enterprise, the prime motivation of which is likely to be prof‑it rather than persecution on a Convention ground. In other words, victims are likely to be targeted above all because of their perceived or potential commercial value to the traffickers. This overriding economic motive does not, however, exclude the possibility of Convention‑related grounds in the targeting and selection of victims of trafficking. Scenarios in which trafficking can flourish frequently coincide with situations where potential victims may be vulnerable to trafficking precisely as a result of characteristics contained in the 1951 Convention refugee definition. For instance, States where there has been significant social upheaval and/or economic transition or which have been involved in armed conflict resulting in a breakdown in law and order are prone to increased poverty, deprivation and dislocation of the civilian population. Opportunities arise for organized crime to exploit the ina‑bility, or lack of will, of law enforcement agencies to maintain law and order, in particular the failure to ensure adequate security for specific or vulnerable groups.

32. Members of a certain race or ethnic group in a given country may be especially vulnerable to trafficking and/or less effectively protected by the authorities of the country of origin. Victims may be targeted on the basis of their ethnicity, nationality, religious or political views in a context where individuals with specific profiles are already more vulnerable to exploitation and abuse of varying forms. Individuals may also be targeted by reason of their belonging to a particular social group. As an example, among children or women generally in a particular society some subsets of children or women may be especially vulnerable to being trafficked and may constitute a social group within the terms of the refugee definition. Thus, even if an individual is not trafficked solely and exclusively for a Convention reason, one or more of these Convention grounds may have been relevant for the traf‑ficker’s selection of the particular victim.

25 UNHCR, Resettlement Handbook, November 2004 edition, chapter 4.1.26 See UNHCR Guidelines on Gender‑related Persecution, above footnote 4, para. 20.27 See UNHCR “Interpreting Article 1”, above footnote 20, para. 25.

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g) Convention grounds

33. The causal link may be established to any one single Convention ground or to a combination of these grounds. Although a successful claim to refugee status only needs to establish a causal link to one ground, a full analysis of trafficking cases may frequently reveal a number of inter‑linked, cumulative grounds.

Race

34. For the purposes of the refugee definition, race has been defined as including “all kinds of ethnic groups that are referred to as ‘races’ in common usage”.28 In situations of armed conflict where there is a deliberate policy of exploitation or victimization of certain racial or ethnic groups, persecution may manifest itself by the trafficking of members of that group. This kind of targeting of victims may occur in conjunction with an economic motivation which above all seeks to obtain financial gain. In the absence of armed conflict, members of one racial group may still be particularly targeted for trafficking for varied ends, if the State is unable or unwilling to protect members of that group. Where trafficking serves the sex trade, women and girls may also be especially targeted as a result of market demands for a particular race (or nationality). As the Special Rapporteur on trafficking has noted, such demand “is often further grounded in social power disparities of race, nationality, caste and colour”.29

Religion

35. Individuals may similarly be targeted by traffickers because they belong to a particular reli‑gious community, that is, they may be targeted because their faith or belief identifies them as a member of a vulnerable group in the particular circumstances, if, for instance, the authorities are known not to provide adequate protection to certain religious groups. Again the profit motive may be an overriding factor, but this does not obviate the relevance of religion as a factor in the profiling and selection of victims. Alternatively, trafficking may be the method chosen to perse‑cute members of a particular faith.30

Nationality

36. Nationality has a wider meaning than citizenship. It can equally refer to membership of an eth‑nic or linguistic group and may overlap with the term “race”.31 Trafficking may be the method cho‑sen to persecute members of a particular national group in a context where there is inter‑ethnic conflict within a State and certain groups enjoy lesser guarantees of protection. Again, even where the primary motive of the trafficker is financial gain, someone’s nationality may result in them being more vulnerable to trafficking.

Membership of a particular social group32

37. Victims and potential victims of trafficking may qualify as refugees where it can be demonstrat‑ed that they fear being persecuted for reasons of their membership of a particular social group. In establishing this ground it is not necessary that the members of a particular group know each other or associate with each other as a group. It is, however, necessary33 that they either share a common characteristic other than their risk of being persecuted or are perceived as a group by society. The shared characteristic will often be one that is innate, unchangeable or otherwise fundamental to identity, conscience or the exercise of one’s human rights.34 Persecutory action against a group may be relevant in heightening the visibility of the group without being its defining characteristic.35 As with the other Convention grounds, the size of the purported social group is not a relevant

28 UNHCR, Handbook, para. 68.29 See, Report of the Special Rapporteur, “Integration of the Human Rights of Women and a Gender Perspective”, above footnote 9, paras. 48 and 66.30 See generally, UNHCR, “Guidelines on International Protection: Religion‑Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees”, HCR/GIP/04/06, 28 April 200431 UNHCR, Handbook, para. 74.32 See generally, UNHCR, “Guidelines on International Protection: Membership of a Particular Social Group within the context of Article 1A(2) of the 1951 Convention and 1967 Protocol relating to the Status of Refugees”, HCR/GIP/02/02, 7 May 2002.33 Ibid., para. 15.34 Ibid., para. 11.35 Ibid., para. 14.

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criterion in determining whether a social group exists within the meaning of Article 1A(2).36 While a claimant must still demonstrate a well‑founded fear of being persecuted based on her or his member‑ship of the particular social group, she or he need not demonstrate that all members of the group are at risk of persecution in order to establish the existence of the group.37

38. Women are an example of a social subset of individuals who are defined by innate and immutable characteristics and are frequently treated differently to men. As such, they may constitute a particular social group.38 Factors which may distinguish women as targets for traffickers are generally connected to their vulnerability in certain social settings; therefore certain social subsets of women may also constitute particular social groups. Men or children or certain social subsets of these groups may also be considered as particular social groups. Examples of social subsets of women or children could, depending on the context, be single women, widows, divorced women, illiterate women, separated or unaccompanied children, orphans or street children. The fact of belonging to such a particular social group may be one of the factors contributing to an individual’s fear of being subjected to persecution, for example, to sexual exploitation, as a result of being, or fearing being, trafficked.

39. Former victims of trafficking may also be considered as constituting a social group based on the unchangeable, common and historic characteristic of having been trafficked. A society may also, depending on the context, view persons who have been trafficked as a cognizable group within that society. Particular social groups can nevertheless not be defined exclusively by the persecution that members of the group suffer or by a common fear of persecution.39 It should therefore be noted that it is the past trafficking experience that would constitute one of the elements defining the group in such cases, rather than the future persecution now feared in the form of ostracism, punishment, reprisals or re‑trafficking. In such situations, the group would therefore not be defined solely by its fear of future persecution.

Political opinion

40. Individuals may be targeted for trafficking because they hold a certain political opinion or are per‑ceived as doing so. Similar considerations apply for the other Convention grounds, that is, individuals may, depending on the circumstances, be targeted because of their actual or perceived political views which make them vulnerable and less likely to enjoy the effective protection of the State.

III. STATELESSNESS AND TRAFFICKING

41. The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness establish a legal framework setting out the rights of stateless persons, the obligations of States Parties to avoid actions that would result in statelessness and the steps to be taken to remedy situations of statelessness. The 1954 Convention applies to anyone who is “not considered as a national by any State under the operation of its law”,40 that is, it applies for the benefit of those who are denied citizenship under the laws of any State. The 1961 Convention generally re‑quires States to avoid actions that would result in statelessness and explicitly forbids the deprivation of nationality if this would result in statelessness.41 This constitutes a prohibition on actions that would cause statelessness, as well as an obligation to avoid situations where statelessness may arise by default or neglect. The only exception to this prohibition is when the nationality was acquired fraudulently.42

42. When seeking to assess and address the situation of someone who has been trafficked, it is important to recognize potential implications as regards statelessness. The mere fact of being a 36 Ibid., para. 18.37 Ibid., para. 17.38 Ibid., para. 12. See also UNHCR Guidelines on Gender‑related Persecution, above footnote 4, para. 30.39 See UNHCR Guidelines on Membership of a Particular Social Group, above footnote 32, para. 14.40 See Article 1(1) of the 1954 Convention.41 See Article 8(1) of the 1961 Convention.42 In addition to the 1954 and 1961 Statelessness Conventions, other international or regional instruments set out similar principles. See, for instance, the 1965 Convention on the Elimination of All Forms of Racial Discrimination, the 1966 International Covenant on Civil and Political Rights, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, the 1997 European Convention on Nationality, the 1969 American Con‑vention on Human Rights and the 1990 African Charter on the Rights and Welfare of the Child.

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victim of trafficking will not per se render someone stateless. Victims of trafficking continue to possess the citizenship they had when they fell under the control of their traffickers. If, however, these traffickers have confiscated their identity documents, as commonly happens as a way of establishing and exerting control over their victims, they may be unable to prove citizenship. This lack of documentation and temporary inability to establish identity is not necessarily unique to victims of trafficking. It should be, and in many cases is, easily overcome with the assistance of the authorities of the State of origin.43

43. Everyone has the right to return to their own country.44 States should extend diplomatic pro‑tection to their nationals abroad. This includes facilitating their re‑entry into the country, including in the case of victims of trafficking who find themselves abroad. If, however, the State withholds such assistance and fails to supply documentation to enable the individual to return, one practical consequence may be to render the individual effectively stateless.45 Even if the individuals were not previously considered stateless by their State of nationality, they may find themselves effectively treated as such if they attempt to avail themselves of that State’s protection.46 UNHCR’s stateless‑ness mandate may mean it needs to take action to assist individuals in such circumstances.47

44. There may also be situations where stateless individuals are trafficked out of their country of habitual residence. The lack of documentation coupled with lack of citizenship may render them unable to secure return to their country of habitual residence. While this alone does not make someone a refugee, the individual concerned may be eligible for refugee status where the refusal of the country of habitual residence to allow re‑entry is related to a Convention ground and the in‑ability to return to the country leads to serious harm or a serious violation, or violations, of human rights amounting to persecution.

IV. PROCEDURAL ISSUES

45. Given the broad range of situations in which trafficking cases come to light and victims of trafficking can be identified, it is important that mechanisms be put in place at the national level to provide for the physical, psychological and social recovery of victims of trafficking. This includes the provision of housing, legal counselling and information, medical, psychological and material assistance, as well as employment, educational and training opportunities in a manner which takes into account the age, gender and special needs of victims of trafficking.48 It is also necessary to en‑sure that victims of trafficking have access to fair and efficient asylum procedures as appropriate49 and to proper legal counselling, if they are to be able to lodge an asylum claim effectively. In view of the complexities of asylum claims presented by victims or potential victims of trafficking, such claims normally require an examination on their merits in regular procedures.

46. In the reception of applicants who claim to have been victims of trafficking, and in interviewing such individuals, it is of utmost importance that a supportive environment be provided so that they can be reassured of the confidentiality of their claim. Providing interviewers of the same sex as the applicant can be particularly important in this respect. Interviewers should also take into consideration that victims who have escaped from their traffickers could be in fear of revealing the real extent of the persecution they have suffered. Some may be traumatized and in need of expert medical and/or psycho‑social assistance, as well as expert counselling.

43 In such circumstances, it is necessary to respect principles of confidentiality. These require amongst other things that any contact with the country of origin should not indicate either that the individual concerned has applied for asylum or that she or he has been trafficked.44 1948 Universal Declaration of Human Rights, Article 13(2). See also, Article 12(4) of the International Covenant on Civil and Political Rights, which reads: “No one shall be arbitrarily deprived of the right to enter his own country.”45 See, Executive Committee Conclusion No. 90 (LII), 2001, paragraph (s), in which the Executive Committee of UNHCR expresses its concern that many victims of trafficking are rendered effectively stateless due to an inability to establish their identity and nationality status.46 This is so, despite relevant State obligations contained in the 1961 Convention on the Reduction of Statelessness, in addition to Article 8 of the Trafficking Protocol.47 When the 1961 Convention on the Reduction of Statelessness came into force, the UN General Assembly designated UNHCR as the UN body entrusted to act on behalf of stateless persons. Since 1975, General Assembly Resolutions have further detailed UNHCR’s responsibilities regarding the prevention of statelessness and the protection of stateless persons.48 See Article 6 in Part II of the Trafficking Protocol.49 See Agenda for Protection, Goal 2 Objective 2, and the OHCHR, “Recommended Principles and Guidelines on Human Rights and Human Traffick‑ing”, above footnote 13, Guideline 2.7, and the Council of Europe Convention, Explanatory Report, para. 377.

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47. Such assistance should be provided to victims in an age and gender sensitive manner. Many in‑stances of trafficking, in particular trafficking for the purposes of exploitation of the prostitution of others or other forms of sexual exploitation, are likely to have a disproportionately severe effect on women and children. Such individuals may rightly be considered as victims of gender‑related persecu‑tion. They will have been subjected in many, if not most, cases to severe breaches of their basic human rights, including inhuman or degrading treatment, and in some instances, torture.

48. Women, in particular, may feel ashamed of what has happened to them or may suffer from trau‑ma caused by sexual abuse and violence, as well as by the circumstances surrounding their escape from their traffickers. In such situations, the fear of their traffickers will be very real. Additionally, they may fear rejection and/or reprisals by their family and/or community which should be taken into account when considering their claims. Against this background and in order to ensure that claims by female victims of trafficking are properly considered in the refugee status determination process, a number of measures should be borne in mind. These have been set out in Part III of UNHCR’s Guidelines on International Protection on gender‑related persecution and are equally applicable in the context of trafficking‑related claims.50

49. Children also require special attention in terms of their care, as well as of the assistance to be provided in the presentation of asylum claims. In this context, procedures for the rapid identification of child victims of trafficking need to be established, as do specialized programmes and policies to protect and support child victims, including through the appointment of a guardian, the provision of age‑sensitive counselling and tracing efforts which bear in mind the need for confidentiality and a supportive environment. Additional information on the appropriate handling of claims by child victims of trafficking can be found in the UN Children Fund (UNICEF) “Guidelines for the Protection of the Rights of Child Victims of Trafficking”,51 in the “Recommended Principles and Guidelines on Human Rights and Human Trafficking” of the Office of the High Commissioner for Human Rights52 and Gen‑eral Comment No. 6 of the of the Committee on the Rights of the Child.53

50. An additional and specific consideration relates to the importance of avoiding any linkage, wheth‑er overt or implied, between the evaluation of the merits of a claim to asylum and the willingness of a victim to give evidence in legal proceedings against her or his traffickers. Providing evidence to help identify and prosecute traffickers can raise specific protection concerns that need to be addressed through specially designed witness protection programmes. The fact that an individual has agreed to provide such evidence will nevertheless not necessarily make her or him a refugee, unless the reper‑cussions feared upon a return to the country of origin rise to the level of persecution and can be linked to one or more of the Convention grounds. Conversely, the fact that a victim of trafficking refuses to provide evidence should not lead to any adverse conclusion with respect to her or his asylum claim.

50 See UNHCR Guidelines on Gender‑related Persecution, above footnote 4. Complementary information can be found in World Health Organization, London School of Hygiene and Tropical Medicine and Daphne Programme of the European Commission, WHO Ethical and Safety Recommendations for Interviewing Trafficked Women, 2003, available at http://www.who.int/gender/ documents/en/final%20recommendations%2023%20oct.pdf.51 See above footnote 19.52 See above footnote 13. Guideline 8 addresses special measures for the protection and support of child victims of trafficking.53 See above, footnote 18, especially paras. 64–78.

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Distr. GENERAL HCR/GIP/09/08 22 September 2009 Original: ENGLISH


Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees

UNHCR issues these Guidelines pursuant to its mandate, as contained in the Statute of the Office of the United Nations High Commissioner for Refugees, in conjunction with Article 35 of the 1951 Convention relating to the Status of Refugees and Article II of its 1967 Protocol. These Guidelines complement the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status un‑der the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (re‑edited, Gene‑va, January 1992).

These Guidelines are intended to provide legal interpretative guidance for governments, legal practitioners, decision makers and the judiciary, as well as UNHCR staff carrying out refugee sta‑tus determination in the field.

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I. INTRODUCTION

1. These Guidelines offer substantive and procedural guidance on carrying out refugee status de‑termination in a child‑sensitive manner. They highlight the specific rights and protection needs of children in asylum procedures. Although the definition of a refugee contained in Article 1(A)2 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (hereafter “1951 Conven‑tion” and “1967 Protocol”) applies to all individuals regardless of their age, it has traditionally been interpreted in light of adult experiences. This has meant that many refugee claims made by children have been assessed incorrectly or overlooked altogether.1

2. The specific circumstances facing child asylum‑seekers as individuals with independent claims to refugee status are not generally well understood. Children may be perceived as part of a family unit rather than as individuals with their own rights and interests. This is explained partly by the subor‑dinate roles, positions and status children still hold in many societies worldwide. The accounts of children are more likely to be examined individually when the children are unaccompanied than when they are accompanied by their families. Even so, their unique experiences of persecution, due to fac‑tors such as their age, their level of maturity and development and their dependency on adults have not always been taken into account. Children may not be able to articulate their claims to refugee status in the same way as adults and, therefore, may require special assistance to do so.

3. Global awareness about violence, abuse and discrimination experienced by children is growing,2 as is reflected in the development of international and regional human rights standards. While these developments have yet to be fully incorporated into refugee status determination processes, many national asylum authorities are increasingly acknowledging that children may have refugee claims in their own right. In Conclusion on Children at Risk (2007), UNHCR’s Executive Committee underlines the need for children to be recognized as “active subjects of rights” consistent with international law. The Executive Committee also recognized that children may experience child‑specific forms and man‑ifestations of persecution.3

4. Adopting a child‑sensitive interpretation of the 1951 Convention does not mean, of course, that child asylum‑seekers are automatically entitled to refugee status. The child applicant must establish that s/he has a well‑founded fear of being persecuted for reasons of race, religion, nationality, mem‑bership of a particular social group or political opinion. As with gender, age is relevant to the entire refugee definition.4 As noted by the UN Committee on the Rights of the Child, the refugee definition:

… must be interpreted in an age and gender‑sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under‑age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child‑specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child‑specific forms and manifestations of persecution as well as gender‑based violence in national refugee status‑determination procedures.5

Alongside age, factors such as rights specific to children, a child’s stage of development, knowledge and/or memory of conditions in the country of origin, and vulnerability, also need to be considered to ensure an appropriate application of the eligibility criteria for refugee status.6

1 UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, Geneva, 1997 (hereafter “UNHCR, Guidelines on Unaccompanied Children Seeking Asylum”), http://www.unhcr.org/refworld/docid/3ae6b3360. html, in particular Part 8.2 See, for instance, UN General Assembly, Rights of the Child: Note by the Secretary‑General, A/61/299, 29 Aug. 2006 (hereafter “UN study on violence against children”) http://www.unhcr.org/refworld/docid/453780fe0.html; UN Commission on the Status of Women, The elimination of all forms of discrimination and violence against the girl child, E/CN.6/2007/2, 12 Dec. 2006, http://www. unhcr.org/refworld/docid/46c5b30c0.html; UN General Assembly, Impact of armed conflict on children: Note by the Secretary‑ General (the “Machel Study”), A/51/306, 26 Aug. 1996, http://www.unhcr.org/refworld/docid/3b00f2d30.html, and the strategic review marking the 10 year anniversary of the Machel Study, UN General Assembly, Report of the Special Representative of the Secretary‑General for Children and Armed Conflict, A/62/228, 13 Aug. 2007, http://www.unhcr.org/refworld/docid/47316f602.html.3 ExCom, Conclusion on Children at Risk, 5 Oct. 2007, No. 107 (LVIII) – 2007, (hereafter “ExCom, Conclusion No. 107”), http://www.unhcr.org/refworld/docid/471897232.html, para. (b)(x)(viii).4 UNHCR, Guidelines on International Protection No. 1: Gender‑Related Persecution Within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 7 May 2002 (hereafter “UNHCR, Guidelines on Gender‑ Related Persecution”), http://www.unhcr.org/refworld/docid/3d36f1c64.html, paras. 2, 4.5 UN Committee on the Rights of the Child, General Comment No. 6 (2005)‑Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, CRC/GC/2005/6, Sep. 2005 (hereafter “CRC, General Comment No. 6”), http://www.unhcr.org/refworld/docid/42dd174b4.html, para. 74.6 UNHCR, Guidelines on Unaccompanied Children Seeking Asylum, op cit., page 10.

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5. A child‑sensitive application of the refugee definition would be consistent with the 1989 Con‑vention on the Rights of the Child (hereafter “the CRC”).7 The Committee on the Rights of the Child has identified the following four Articles of the CRC as general principles for its implementation:8 Article 2: the obligation of States to respect and ensure the rights set forth in the Convention to each child within their jurisdiction without discrimination of any kind;9 Article 3 (1): the best inter‑ests of the child as a primary consideration in all actions concerning children;10 Article 6: the child’s inherent right to life and States parties’ obligation to ensure to the maximum extent possible the survival and development of the child;11 and Article 12: the child’s right to express his/her views freely regarding “all matters affecting the child”, and that those views be given due weight.12 These principles inform both the substantive and the procedural aspects of the determination of a child’s application for refugee status.

II. DEFINITIONAL ISSUES

6. These guidelines cover all child asylum‑seekers, including accompanied, unaccompanied and separated children, who may have individual claims to refugee status. Each child has the right to make an independent refugee claim, regardless of whether s/he is accompanied or unaccompa‑nied. “Separated children” are children separated from both their parents or from their previous legal or customary primary caregivers but not necessarily from other relatives. In contrast, “unac‑companied children” are children who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so.13

7. For the purposes of these Guidelines, “children” are defined as all persons below the age of 18 years.14 Every person under 18 years who is the principal asylum applicant is entitled to child‑sen‑sitive procedural safeguards. Lowering the age of childhood or applying restrictive age assessment approaches in order to treat children as adults in asylum procedures may result in violations of their rights under international human rights law. Being young and vulnerable may make a person especially susceptible to persecution. Thus, there may be exceptional cases for which these guide‑lines are relevant even if the applicant is 18 years of age or slightly older. This may be particularly the case where persecution has hindered the applicant’s development and his/her psychological maturity remains comparable to that of a child.15

8. Even at a young age, a child may still be considered the principal asylum applicant.16 The parent, caregiver or other person representing the child will have to assume a greater role in making sure

7 With a near universal ratification, the CRC is the most widely ratified human rights treaty, available at http://www.unhcr.org/refworld/docid/ 3ae6b38f0.html. The rights contained therein apply to all children within the jurisdiction of the State. For a detailed analysis of the provisions of the CRC, see UNICEF, Implementation Handbook for the Convention on the Rights of the Child, fully revised third edition, Sep. 2007 (hereafter “UNICEF, Implementation Handbook”). It can be ordered at http://www.unicef.org/publications/index_43110.html.8 CRC, General Comment No. 5 (2003): General Measures of Implementation for the Convention on the Rights of the Child (Arts. 4, 42 and 44, Para. 6), CRC/GC/2003/5, 3 Oct. 2003 (hereafter “CRC, General Comment No. 5”), http://www.unhcr.org/refworld/docid/4538834f11.html, para. 12.9 CRC, General Comment No. 6, para. 18.10 Ibid., paras. 19–22. See also ExCom Conclusion No. 107, para. (b)(5), and, on how to conduct “best interests” assessments and determinations, UNHCR, Guidelines on Determining the Best Interests of the Child, Geneva, May 2008, http://www.unhcr.org/refworld/docid/48480c342.html.11 CRC, General Comment No. 6, paras. 23–24.12 Ibid., para. 25. See also CRC, General Comment No. 12 (2009): The right of the child to be heard, CRC/C/GC/12, 20 July 2009 (hereafter “CRC, General Comment No. 12”), http://www.unhcr.org/refworld/docid/4ae562c52.html.13 CRC, General Comment No. 6, paras. 7–8. See also, UNHCR, Guidelines on Unaccompanied Children Seeking Asylum, op cit., p. 5, paras. 3.1‑3.2. See also, UNHCR, UNICEF et al, Inter‑agency Guiding Principles on Unaccompanied and Separated Children, Geneva, 2004 (hereafter “Inter‑Agency Guiding Principles”), http://www.unhcr.org/refworld/docid/4113abc14.html, p. 13.14 CRC, Art. 1 provides that “a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.” In addition, the EU Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, 19 May 2004, 2004/83/EC, http://www.unhcr.org/refworld/docid/4157e75e4.html, provides that “’unaccompanied minors’ means third‑country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States”, Art. 2 (i).15 The United Kingdom Immigration Appeals Tribunal (now the Asylum and Immigration Tribunal) has held that “[t]o adopt a rigidity however in this respect is in our view to fail to recognize that in many areas of the world even today exact ages and dates of birth are imprecise. It is better to err on the side of generosity”; Sarjoy Jakitay v. Secretary of State for the Home Department, Appeal No. 12658 (unreported), U.K. IAT, 15 Nov. 1995. See also, Decision VA0‑02635, VA0‑02635, Canada, Immigration and Refugee Board (hereafter “IRB”), 22 March 2001, http://www.unhcr.org/refworld/docid/4b18dec82.html.16 See, for instance, Chen Shi Hai v. The Minister for Immigration and Multicultural Affairs, [2000] HCA 19, Australia, High Court, 13 April 2000, http://www.unhcr.org/refworld/docid/3ae6b6df4.html. In this case, which concerned a 3 ½ year‑old boy, it was found that “under Australian law, the child was entitled to have his own rights determined as that law provides. He is not for all purposes subsumed to the identity and legal rights of his parents”, para. 78.

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that all relevant aspects of the child’s claim are presented.17 However, the right of children to express their views in all matters affecting them, including to be heard in all judicial and administrative proceed‑ings, also needs to be taken into account.18 A child claimant, where accompanied by parents, members of an extended family or of the community who by law or custom are responsible for the child, is en‑titled to appropriate direction and guidance from them in the exercise of his/her rights, in a manner consistent with the evolving capacities of the child.19 Where the child is the principal asylum‑seeker, his/her age and, by implication, level of maturity, psychological development, and ability to articulate certain views or opinions will be an important factor in a decision maker’s assessment.

9. Where the parents or the caregiver seek asylum based on a fear of persecution for their child, the child normally will be the principal applicant even when accompanied by his/her parents. In such cas‑es, just as a child can derive refugee status from the recognition of a parent as a refugee, a parent can, mutatis mutandis, be granted derivative status based on his/her child’s refugee status.20 In situations where both the parent(s) and the child have their own claims to refugee status, it is preferable that each claim be assessed separately. The introduction of many of the procedural and evidentiary meas‑ures enumerated below in Part IV will enhance the visibility of children who perhaps ought to be the principal applicants within their families. Where the child’s experiences, nevertheless, are considered part of the parent’s claim rather than independently, it is important to consider the claim also from the child’s point of view.21

III. SUBSTANTIVE ANALYSIS

a) Well‑founded fear of persecution

10. The term “persecution”, though not expressly defined in the 1951 Convention, can be consid‑ered to involve serious human rights violations, including a threat to life or freedom, as well as other kinds of serious harm or intolerable situations as assessed with regard to the age, opinions, feelings and psychological make‑up of the applicant.22 Discrimination may amount to persecution in certain situations where the treatment feared or suffered leads to consequences of a substantially prejudicial nature for the child concerned.23 The principle of the best interests of the child requires that the harm be assessed from the child’s perspective. This may include an analysis as to how the child’s rights or interests are, or will be, affected by the harm. Ill‑treatment which may not rise to the level of persecu‑tion in the case of an adult may do so in the case of a child.24

11. Both objective and subjective factors are relevant to establish whether or not a child applicant has a well‑founded fear of persecution.25 An accurate assessment requires both an up‑to‑date analy‑sis and knowledge of child‑specific circumstances in the country of origin, including of existing child protection services. Dismissing a child’s claim based on the assumption that perpetrators would not take a child’s views seriously or consider them a real threat could be erroneous. It may be the case that a child is unable to express fear when this would be expected or, conversely, exaggerates the fear. In 17 See also UNHCR, Refugee Children: Guidelines on Protection and Care, Geneva, 1994, http://www.unhcr.org/refworld/docid/3ae6b3470.html, pp. 97–103.18 CRC, Art. 12(2); CRC, General Comment No. 12, paras. 32, 67, 123.19 CRC, Art. 5.20 UNHCR, Guidance Note on Refugee Claims relating to Female Genital Mutilation, May 2009 (hereafter “UNHCR, Guidance Note on FGM”), http://www.unhcr.org/refworld/docid/4a0c28492.html, para. 11. See also UNHCR, ExCom Conclusion on the Protection of the Refugee’s Family, No. 88 (L), 1999, http://www.unhcr.org/refworld/docid/3ae68c4340.html, para. (b)(iii).21 See, for instance, EM (Lebanon) (FC) (Appellant) v. Secretary of State for the Home Department (Respondent), U.K. House of Lords, 22 Oct. 2008, http://www.unhcr.org/refworld/docid/490058699.html; Refugee Appeal Nos. 76250 & 76251, Nos. 76250 & 76251, New Zealand, Refugee Status Appeals Authority (hereafter “RSAA”), 1 Dec. 2008, http://www.unhcr.org/refworld/docid/494f64952.html.22 See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, 1979, re‑edited, Geneva, Jan. 1992 (hereafter “UNHCR, Handbook”) http://www.unhcr. org/refworld/docid/3ae6b3314.html, paras. 51–52; UNHCR, Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked, 7 Apr. 2006 (hereafter “UNHCR, Guidelines on Victims of Trafficking”), http://www.unhcr.org/refworld/ docid/443679fa4.html, para. 14.23 UNHCR, Handbook, paras. 54–55.24 See, for instance, United States Bureau of Citizenship and Immigration Services, Guidelines For Children’s Asylum Claims, 10 Dec. 1998 (hereafter the “U.S. Guidelines for Children’s Asylum Claims”), http://www.unhcr.org/refworld/docid/3f8ec0574. html, noting that “the harm a child fears or has suf‑fered, however, may be relatively less than that of an adult and still qualify as persecution.” See also, Chen Shi Hai, op. cit., where the Court found that “what may possibly be viewed as acceptable enforcement of laws and programmes of general application in the case of the parents may nonetheless be persecution in the case of the child”, para. 79.25 UNHCR, Handbook, paras. 40–43.



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such circumstances, decision makers must make an objective assessment of the risk that the child would face, regardless of that child’s fear.26 This would require consideration of evidence from a wide array of sources, including child‑specific country of origin information. When the parent or caregiver of a child has a well‑founded fear of persecution for their child, it may be assumed that the child has such a fear, even if s/he does not express or feel that fear.27

12. Alongside age, other identity‑based, economic and social characteristics of the child, such as family background, class, caste, health, education and income level, may increase the risk of harm, influence the type of persecutory conduct inflicted on the child and exacerbate the effect of the harm on the child. For example, children who are homeless, abandoned or otherwise without pa‑rental care may be at increased risk of sexual abuse and exploitation or of being recruited or used by an armed force/ group or criminal gang. Street children, in particular, may be rounded up and detained in degrading conditions or be subjected to other forms of violence, including murder for the purpose of “social cleansing”.28 Children with disabilities may be denied specialist or routine medical treatment or be ostracized by their family or community. Children in what may be viewed as unconventional family situations including, for instance, those born out of wedlock, in violation of coercive family policies,29 or through rape, may face abuse and severe discrimination. Pregnant girls may be rejected by their families and subject to harassment, violence, forced prostitution or other demeaning work.30

Child‑specific rights

13. A contemporary and child‑sensitive understanding of persecution encompasses many types of human rights violations, including violations of child‑specific rights. In determining the persecutory character of an act inflicted against a child, it is essential to analyse the standards of the CRC and other relevant international human rights instruments applicable to children.31 Children are entitled to a range of child‑specific rights set forth in the CRC which recognize their young age and depend‑ency and are fundamental to their protection, development and survival. These rights include, but are not limited to, the following: the right not to be separated from parents (Article 9); protection from all forms of physical and mental violence, abuse, neglect, and exploitation (Article 19); protec‑tion from traditional practices prejudicial to the health of children (Article 24); a standard of living adequate for the child’s development (Article 27); the right not to be detained or imprisoned unless as a measure of last resort (Article 37); and protection from under‑ age recruitment (Article 38). The CRC also recognizes the right of refugee children and children seeking refugee status to appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the CRC and in other international human rights or humanitarian instruments (Article 22).

14. Children’s socio‑economic needs are often more compelling than those of adults, particularly due to their dependency on adults and unique developmental needs. Deprivation of economic, social and cultural rights, thus, may be as relevant to the assessment of a child’s claim as that of civil and political rights. It is important not to automatically attribute greater significance to certain violations than to others but to assess the overall impact of the harm on the individual child. The violation of one right often may expose the child to other abuses; for example, a denial of the right to education or an adequate standard of living may lead to a heightened risk of other forms

26 See UNHCR, Handbook, paras. 217–219. See also Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629; F.C.J. 1049, Canada, Federal Court, 24 Oct. 1991, http://www.unhcr.org/refworld/docid/403e24e84.html. The Court concluded that “I am loath to believe that a refugee status claim could be dismissed solely on the ground that as the claimant is a young child or a person suffering from a mental disability, s/he was incapable of experiencing fear the reasons for which clearly exist in objective terms.”, at 5.27 See, for instance, Canada (Minister of Citizenship and Immigration) v. Patel, 2008 FC 747, [2009] 2 F.C.R. 196, Canada, Federal Court, 17 June 2008, http://www.unhcr.org/refworld/docid/4a6438952.html, at 32–33.28 “Social cleansing” refers to the process of removing an undesirable group from an area and may involve murder, disappearances, violence and other ill‑treatment. See, UNICEF, Implementation Handbook, pp. 89, 91, 287. See also Case of the “Street Children” (Villagrán‑Morales et al.) v. Guate‑mala, Inter‑American Court of Human Rights (hereafter “IACtHR”), Judgment of 19 Nov. 1999, http://www.unhcr.org/refworld/docid/4b17bc442.html, paras. 190–191. The Court found that there was a prevailing pattern of violence against street children in Guatemala. Relying on the CRC to interpret Art. 19 of the 1969 American Convention on Human Rights, “Pact of San Jose”, Costa Rica (hereafter “ACHR”), http://www.unhcr.org/refworld/docid/3ae6b36510.html, the Court noted that the State had violated their physical, mental, and moral integrity as well as their right to life and also failed to take any measures to prevent them from living in misery, thereby denying them of the minimum conditions for a dignified life.29 See further, UNHCR, Note on Refugee Claims Based on Coercive Family Planning Laws or Policies, Aug. 2005, http://www. unhcr.org/refworld/docid/4301a9184.html.30 UNHCR, Guidelines on Gender‑Related Persecution, op cit., para. 18.31 In the context of Africa, the African Charter on the Rights and Welfare of the Child should also be considered (hereafter “African Charter”), http://www.unhcr.org/refworld/docid/3ae6b38c18.html.


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of harm, including violence and abuse.32 Moreover, there may be political, racial, gender or religious aims or intentions against a particular group of children or their parents underlying discriminatory measures in the access and enjoyment of ESC rights. As noted by the UN Committee on Economic, Social and Cultural Rights:

The lack of educational opportunities for children often reinforces their subjection to various other human rights violations. For instance, children who may live in abject poverty and not lead healthy lives are particular‑ly vulnerable to forced labour and other forms of exploitation. Moreover, there is a direct correlation between, for example, primary school enrolment levels for girls and major reductions in child marriages.33

Child‑related manifestations of persecution

15. While children may face similar or identical forms of harm as adults, they may experience them differently. Actions or threats that might not reach the threshold of persecution in the case of an adult may amount to persecution in the case of a child because of the mere fact that s/he is a child. Imma‑turity, vulnerability, undeveloped coping mechanisms and dependency as well as the differing stages of development and hindered capacities may be directly related to how a child experiences or fears harm.34 Particularly in claims where the harm suffered or feared is more severe than mere harassment but less severe than a threat to life or freedom, the individual circumstances of the child, including his/her age, may be important factors in deciding whether the harm amounts to persecution. To assess accurately the severity of the acts and their impact on a child, it is necessary to examine the details of each case and to adapt the threshold for persecution to that particular child.

16. In the case of a child applicant, psychological harm may be a particularly relevant factor to con‑sider. Children are more likely to be distressed by hostile situations, to believe improbable threats, or to be emotionally affected by unfamiliar circumstances. Memories of traumatic events may linger in a child and put him/her at heightened risk of future harm.

17. Children are also more sensitive to acts that target close relatives. Harm inflicted against mem‑bers of the child’s family can support a well‑founded fear in the child. For example, a child who has witnessed violence against, or experienced the disappearance or killing of a parent or other person on whom the child depends, may have a well‑ founded fear of persecution even if the act was not tar‑geted directly against him/her.35 Under certain circumstances, for example, the forced separation of a child from his/her parents, due to discriminatory custody laws or the detention of the child’s parent(s) could amount to persecution.36

Child‑specific forms of persecution

18. Children may also be subjected to specific forms of persecution that are influenced by their age, lack of maturity or vulnerability. The fact that the refugee claimant is a child may be a central factor in the harm inflicted or feared. This may be because the alleged persecution only applies to, or disproportionately affects, children or because specific child rights may be infringed. UNHCR’s Executive Committee has recognized that child‑specific forms of persecution may include under‑age recruitment, child trafficking and female genital mutilation (hereafter “FGM”).37 Other examples include, but are not limited to, family and domestic violence, forced or underage marriage,38 bonded or hazardous child labour, forced labour,39

32 CRC, General Comment No. 5, op cit., paras. 6–7. See further below at v. Violations of economic, social and cultural rights.33 UN Committee on Economic, Social and Cultural Rights (hereafter “CESCR”), General Comment No. 11: Plans of Action for Primary Education (Art. 14 of the Covenant), E/1992/23, 10 May 1999, http://www.unhcr.org/refworld/docid/4538838c0.html, para. 4.34 See further Save the Children and UNICEF, The evolving capacities of the child, 2005, http://www.unicef‑irc.org/publications/pdf/evolving‑eng.pdf.35 See, for instance, Cicek v. Turkey, Application No. 67124/01, European Court of Human Rights (hereafter “ECtHR”), 18 Jan. 2005, http://www.unhcr.org/refworld/docid/42d3e7ea4.html, paras. 173–174; Bazorkina v. Russia, Application No. 69481/01, ECtHR, 27 July 2006, http://www.unhcr.org/refworld/ docid/44cdf4ef4.html, paras. 140–141.36 See EM (Lebanon) (FC) (Appellant) v. Secretary of State for the Home Department (Respondent), op. cit., Refugee Appeal Nos. 76226 and 76227, Nos. 76226 and 76227, New Zealand, RSAA, 12 Jan. 2009, http://www.unhcr.org/refworld/docid/49a6ac0e2. html, paras. 112–113.37 ExCom, Conclusion No. 107, para. (g)(viii).38 CRC, Art. 24(3); International Convenant on Civil and Political Rights (hereafter “ICCPR”), http://www.unhcr.org/refworld/ docid/3ae6b3aa0.html, Art. 23; International Covenant on Economic, Social and Cultural Rights, http://www.unhcr.org/refworld/ docid/3ae6b36c0.html, Art. 10; Convention on the Elimination of All Forms of Discrimination Against Women, http://www.unhcr.org/refworld/docid/3ae6b3970.html, Art. 16.39 CRC, Arts. 32–36; International Labour Organization, Worst Forms of Child Labour Convention, C182 (hereafter “ILO Convention on the Worst Forms of Child Labour”), http://www.unhcr.org/refworld/docid/3ddb6e0c4.html; Minimum Age Convention, C138, (hereafter “ILO Minimum Age Convention”), http://www.unhcr.org/refworld/docid/421216a34.html, Arts. 2 (3), 2(4).


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forced prostitution and child pornography.40 Such forms of persecution also encompass violations of survival and development rights as well as severe discrimination of children born outside strict family planning rules41 and of stateless children as a result of loss of nationality and attendant rights. Some of the most common forms of child‑specific persecution arising in the context of asylum claims are outlined in greater detail below.

i. Under‑age recruitment

19. There is a growing consensus regarding the ban on the recruitment and use of children below 18 years in armed conflict.42 International humanitarian law prohibits the recruitment and participation in the hostilities of children under the age of 15 years whether in international43 or non‑international armed conflict.44 Article 38 of the CRC reiterates State Parties’ obligations under international hu‑manitarian law. The Rome Statute of the International Criminal Court classifies as war crimes the enlistment and use of children under the age of 15 years into the armed forces at a time of armed conflict.45 The Special Court for Sierra Leone has concluded that the recruitment of children under the age of 15 years into the armed forces constitutes a crime under general international law.46

20. The Optional Protocol to the CRC on the Involvement of Children in Armed Conflict provides that States parties shall take all feasible measures to ensure that members of their armed forces under the age of 18 years do not take part in hostilities, and ensure that persons under the age of 18 years are not compulsorily recruited into their armed forces.47 The Optional Protocol contains an absolute prohibition against the recruitment or use, under any circumstances, of children who are less than 18 years old by armed groups that are distinct from the armed forces of a State.48 It also amends Article 38 of the CRC by raising the minimum age of voluntary recruitment.49 States also commit to use all feasible measures to prohibit and criminalize under‑age recruitment and use of child soldiers by non‑State armed groups.50 The Committee on the Rights of the Child emphasizes that

… under‑age recruitment (including of girls for sexual services or forced marriage with the military) and direct or indirect participation in hostilities constitutes a serious human rights violation and thereby perse‑cution, and should lead to the granting of refugee status where the well‑founded fear of such recruitment or participation in hostilities is based on “reasons of race, religion, nationality, membership of a particular social group or political opinion” (article 1A (2),

1951 Refugee Convention).51

21. In UNHCR’s view, forced recruitment and recruitment for direct participation in hostilities of a child below the age of 18 years into the armed forces of the State would amount to persecution. The same would apply in situations where a child is at risk of forced re‑recruitment or would be punished for having evaded forced recruitment or deserted the State’s armed forces. Similarly, the recruitment by a non‑State armed group of any child below the age of 18 years would be considered persecution.

40 CRC, Art. 34; Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, http://www.unhcr.org/refworld/docid/3ae6b38bc.html.41 See, for instance, Xue Yun Zhang v. Gonzales, No. 01‑71623, U.S. Court of Appeals for the 9th Circuit, 26 May 2005, http://www.unhcr.org/ref‑world/docid/4b17c7082.html; Chen Shi Hai, op. cit.42 See UNICEF, The Paris Principles and Guidelines on Children Associated With Armed Forces or Armed Groups, Feb. 2007 (hereafter “The Paris Principles”). While not binding, they reflect a strong trend for a complete ban on under‑age recruitment. See also UN Security Council resolution 1612 (2005) (on children in armed conflict), 26 July 2005, S/RES/1612, http://www.unhcr.org/refworld/docid/43f308d6c.html, para. 1; 1539 on the protection of children affected by armed conflict, S/RES/1539, 22 Apr. 2004, http://www.unhcr.org/refworld/docid/411236fd4.html.43 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), http://www.unhcr.org/refworld/docid/3ae6b36b4.html, Art. 77(2).44 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non‑International Armed Conflicts (Protocol II), http://www.unhcr.org/refworld/docid/3ae6b37f40.html, Art. 4(3).45 UN General Assembly, Rome Statute of the International Criminal Court, A/CONF. 183/9, 17 July 1998 (hereafter “ICC Statute”), http://www.unhcr.org/refworld/docid/3ae6b3a84.html, Art. 8 (2) (b) [xxvi] and (e)[vii].46 See Prosecutor v. Sam Hinga Norman, Case No. SCSL‑2004‑14‑AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004, paras. 52–53; UN Security Council, Report of the Secretary‑General on the establishment of a Special Court for Sierra Leone, 4 Oct. 2000, S/2000/915, http://www.unhcr.org/refworld/docid/3ae6afbf4.html, para. 17, which recognized the customary character of the prohibition of child recruitment.47 The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, http:// www.unhcr.org/refworld/docid/47fdfb180.html, Arts. 1–2. There are currently 127 States Parties to the Optional Protocol. See also the African Charter, which es‑tablishes 18 years as the minimum age for all compulsory recruitment, Arts. 2 and 22.2, and the ILO Convention on the Worst Forms of Child Labour, which includes the forced recruitment of children under the age of 18, Arts. 2 and 3(a) in its definition of worst forms of child labor.48 Optional Protocol to the CRC on the Involvement of Children in Armed Conflict, Art. 4.49 Ibid., Art. 3.50 Ibid., Art. 4.51 CRC, General Comment, No. 6, para. 59. See also para. 58.

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22. Voluntary recruitment of children above the age of 16 years by States is permissible under the Op‑tional Protocol to the CRC on the Involvement of Children in Armed Conflict.52 However, the recruit‑ing State authorities have to put in place safeguards to ensure that the recruitment is voluntary, that it is undertaken with the informed consent of the parents and that the children who are so recruited are requested to produce satisfactory proof of age prior to their recruitment. In such cases, it is im‑portant to assess whether the recruitment was genuinely voluntary, bearing in mind that children are particularly susceptible to abduction, manipulation and force and may be less likely to resist recruit‑ment. They may enlist under duress, in self‑defence, to avoid harm to their families, to seek protection against unwanted marriages or sexual abuse within their homes, or to access basic means of survival, such as food and shelter. The families of children may also encourage them to participate in armed conflict, despite the risks and dangers.

23. In addition, children may have a well‑founded fear of persecution arising from the treatment they are subjected to, and/or conduct they are required to engage in, by the armed forces or armed group. Boys and girls associated with armed forces or armed groups may be required to serve as cooks, por‑ters, messengers, spies as well as to take direct part in the hostilities. Girls, in particular, may be forced into sexual relations with members of the military.53 It is also important to bear in mind that children who have been released from the armed forces or group and return to their countries and communi‑ties of origin may be in danger of harassment, re‑recruitment or retribution, including imprisonment or extra‑judicial execution.

ii. Child trafficking and labour

24. As recognized by several jurisdictions, trafficked children or children who fear being trafficked may have valid claims to refugee status.54 UNHCR’s Guidelines on Victims of Trafficking and Persons at Risk of Being Trafficked are equally applicable to an asylum claim submitted by a child. The particular impact of a trafficking experience on a child and the violations of child‑specific rights that may be entailed also need to be taken into account.55

25. The trafficking of children occurs for a variety of reasons but all with the same overarching aim to gain profit through the exploitation of human beings.56 In this context, it is important to bear in mind that any recruitment, transportation, transfer, harbouring or receipt of children for the purpose of exploitation is a form of trafficking regardless of the means used. Whether the child consented to the act or not is, therefore, irrelevant.57

26. The trafficking of a child is a serious violation of a range of fundamental rights and, therefore, consti‑tutes persecution. These rights include the right to life, survival and development, the right to protection from all forms of violence, including sexual exploitation and abuse, and the right to protection from child labour and abduction, sale and trafficking, as specifically provided for by Article 35 of the CRC.58

27. The impact of reprisals by members of the trafficking network, social exclusion, ostracism and/or discrimination59 against a child victim of trafficking who is returned to his/her home country needs to be assessed in a child‑sensitive manner. For example, a girl who has been trafficked for sexual ex‑

52 Optional Protocol to the CRC on the Involvement of Children in Armed Conflict, Art. 3. States Parties are required to raise in years the minimum age for the voluntary recruitment from the age set out in Art. 38, para. 3 of the CRC, hence, from 15 to 16 years.53 The Paris Principles define children associated with an armed force or group as follows: “A child associated with an armed force or armed group refers to any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys and girls, used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities.” Art. 2.1.54 See, for instance, Ogbeide v. Secretary of State for the Home Department, No. HX/08391/2002, U.K. IAT, 10 May 2002 (unreported); Li and Others v. Minister of Citizenship and Immigration, IMM‑932‑00, Canada, Federal Court, 11 Dec. 2000, http:// www.unhcr.org/refworld/docid/4b18d3682.html.55 See UNHCR, Guidelines on Victims of Trafficking. See also UNICEF, Guidelines on the Protection of Child Victims of Trafficking, Oct. 2006, http://www.unicef.org/ceecis/0610‑Unicef_Victims_Guidelines_en.pdf, which make reference to refugee status for children who have been trafficked.56 These reasons include, but are not limited to, bonded child labour, debt repayment, sexual exploitation, recruitment by armed forces and groups, and irregular adoption. Girls, in particular, may be trafficked for the purpose of sexual exploitation or arranged marriage while boys may be particularly at risk of being trafficked for various forms of forced labour.57 For a definition of the scope of “trafficking”, see the following international and regional instruments: Protocol to Prevent, Suppress and Punish Traffick‑ing in Persons, Especially Women and Children, Supplementing the UN Convention against Transnational Organized Crime, 15 Nov. 2000, http://www.unhcr.org/refworld/docid/4720706c0.html, in particular Art. 3; Council of Europe Convention on Action against Trafficking in Human Beings, CETS No. 197, 3 May 2005 http://www.unhcr.org/refworld/ docid/43fded544.html.58 For a detailed analysis of the human rights framework relating to the trafficking of children, see UNICEF, Implementation Handbook, op cit., in particular pp. 531–542.59 UNHCR, Guidelines on Victims of Trafficking, op cit., paras. 17–18.

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ploitation may end up being rejected by her family and become a social outcast in her community if returned. A boy, who has been sent away by his parents in the hope and expectation that he will study, work abroad and send remittances back to his family likewise may become excluded from his family if they learn that he has been trafficked into forced labour. Such child victims of trafficking may have very limited possibilities of accessing and enjoying their human rights, including survival rights, if returned to their homes.

28. In asylum cases involving child victims of trafficking, decision makers will need to pay par‑ticular attention to indications of possible complicity of the child’s parents, other family members or caregivers in arranging the trafficking or consenting to it. In such cases, the State’s ability and willingness to protect the child must be assessed carefully. Children at risk of being (re‑)trafficked or of serious reprisals should be considered as having a well‑ founded fear of persecution within the meaning of the refugee definition.

29. In addition to trafficking, other worst forms of labour, such as slavery, debt bondage and other forms of forced labour, as well as the use of children in prostitution, pornography and illicit activ‑ities (for example, the drug trade) are prohibited by international law.60 Such practices represent serious human rights violations and, therefore, would be considered persecution, whether perpe‑trated independently or as part of a trafficking experience.

30. International law also proscribes labour likely to harm the health, safety or morals of a child, also known as “hazardous work”.61 In determining whether labour is hazardous, the following work‑ing conditions need to be considered: work that exposes children to physical or mental violence; work that takes place underground, under water, at dangerous heights or in confined spaces; work that involves dangerous equipment or manual handling of heavy loads; long working hours and unhealthy environments.62 Labour performed by a child under the minimum age designated for the particular kind of work and deemed likely to inhibit the child’s education and full development is also prohibited according to international standards.63 Such forms of labour could amount to per‑secution, as assessed according to the particular child’s experience, his/her age and other circum‑stances. Persecution, for example, may arise where a young child is compelled to perform harmful labour that jeopardizes his/her physical and/or mental health and development.

iii. Female genital mutilation

31. All forms of FGM64 are considered harmful and violate a range of human rights,65 as affirmed by international and national jurisprudence and legal doctrine. Many jurisdictions have recognized that FGM involves the infliction of grave harm amounting to persecution.66 As the practice dis‑proportionately affects the girl child,67 it can be considered a child‑specific form of persecution. For further information about FGM in the context of refugee status determination, see UNHCR Guidance Note on Refugee Claims relating to Female Genital Mutilation.68

iv. Domestic violence against children

32. All violence against children, including physical, psychological and sexual violence, while in the care of parents or others, is prohibited by the CRC.69 Violence against children may be perpetrated

60 ILO Convention on the Worst Forms of Child Labour, Art. 3 (a–c).61 Ibid., Art. 3(d).62 Ibid., Art. 3(d). Ibid., Art. 4 in conjunction with ILO Worst Forms of Child Labour Recommendation, 1999, R190, http://www.unhcr.org/refworld/docid/3ddb6ef34.html, at 3 and 4.63 ILO Minimum Age Convention, Art. 2.64 FGM comprises all procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs for non‑medical reasons. See further, OHCHR, UNAIDS et al., Eliminating Female Genital Mutilation: An Interagency Statement, Feb. 2008, http://www.unhcr.org/refworld/docid/47c6aa6e2.html.65 These include the right to life, to protection from torture, and cruel, inhuman or degrading treatment, to protection from physical and mental violence and the right to the highest attainable standard of health.66 See, for instance, Mlle Diop Aminata, 164078, Commission des Recours des Réfugiés (hereafter “CRR”), France, 17 July 1991, http://www.unhcr.org/refworld/docid/3ae6b7294.html; Khadra Hassan Farah, Mahad Dahir Buraleh, Hodan Dahir Buraleh, Canada, IRB, 10 May 1994, http://www.unhcr.org/refworld/docid/3ae6b70618.html; In re Fauziya Kasinga, 3278, U.S. Board of Immigration Appeals (hereafter “BIA”), 13 June 1996, http://www.unhcr.org/refworld/docid/47bb00782.html.67 FGM is mostly carried out on girls up to 15 years of age, although older girls and women may also be subjected to the practice.68 UNHCR, Guidance Note on FGM, op cit.69 CRC, Arts. 19, 37.

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in the private sphere by those who are related to them through blood, intimacy or law.70 Although it frequently takes place in the name of discipline, it is important to bear in mind that parenting and car‑ing for children, which often demand physical actions and interventions to protect the child, is quite distinct from the deliberate and punitive use of force to cause pain or humiliation.71 Certain forms of violence, in particular against very young children, may cause permanent harm and even death, al‑though perpetrators may not aim to cause such harm.72 Violence in the home may have a particularly significant impact on children because they often have no alternative means of support.73

33. Some jurisdictions have recognized that certain acts of physical, sexual and mental forms of do‑mestic violence may be considered persecution.74 Examples of such acts include battering, sexual abuse in the household, incest, harmful traditional practices, crimes committed in the name of honour, early and forced marriages, rape and violence related to commercial sexual exploitation.75 In some cases, mental violence may be as detrimental to the victim as physical harm and could amount to persecution. Such violence may include serious forms of humiliation, harassment, abuse, the effects of isolation and other practices that cause or may result in psychological harm.76 Domestic violence may also come within the scope of torture and other cruel, inhuman and degrading treatment or pun‑ishment.77 A minimum level of severity is required for it to constitute persecution. When assessing the level of severity of the harm, a number of factors such as the frequency, patterns, duration and impact on the particular child need to be taken into account. The child’s age and dependency on the perpe‑trator as well as the long‑term effects on the physical and psychological development and well‑being of the child also need to be considered.

v. Violations of economic, social and cultural rights

34. The enjoyment of economic, social and cultural rights is central to the child’s survival and devel‑opment.78 The UN Committee on the Rights of the Child has stated that

… the right to survival and development can only be implemented in a holistic manner, through the enforce‑ment of all the other provisions of the Convention, including rights to health, adequate nutrition, social secu‑rity, an adequate standard of living, a healthy and safe environment, education and play.79

While the CRC and the 1966 Covenant on Economic, Social and Cultural Rights contemplate the progressive realization of economic, social and cultural rights, these instruments impose various ob‑ligations on States Parties which are of immediate effect.80 These obligations include avoiding taking retrogressive measures, satisfying minimum core elements of each right and ensuring non‑discrimina‑tion in the enjoyment of these rights.81

35. A violation of an economic, social or cultural right may amount to persecution where minimum core elements of that right are not realized. For instance, the denial of a street child’s right to an ad‑equate standard of living (including access to food, water and housing) could lead to an intolerable

70 Declaration on the Elimination of Violence Against Women, http://www.unhcr.org/refworld/docid/3b00f25d2c.html, Art. 2(a).71 See CRC, General Comment No. 8 (2006): The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punish‑ment (Arts. 19; 28, Para. 2; and 37, inter alia), CRC/C/GC/8, 2 Mar. 2007 (hereafter “CRC, General Comment No. 8”), http://www.unhcr.org/refworld/docid/460bc7772.html, paras. 13–14, 26.72 UN study on violence against children, op. cit., para. 40.73 See further UNICEF, Domestic Violence Against Women and Girls, Innocenti Digest No. 6, 2000, http://www.unicef‑irc.org/publications/pdf/digest6e.pdf.74 See UNHCR, Handbook for the Protection of Women and Girls, Feb. 2008, http://www.unhcr.org/refworld/docid/47cfc2962.html, pp. 142–144. See also, for instance, Rosalba Aguirre‑Cervantes a.k.a. Maria Esperanza Castillo v. Immigration and Naturalization Service, U.S. Court of Appeals for the 9th Circuit, 21 Mar. 2001, http://www.unhcr.org/refworld/docid/3f37adc24.html.75 UN Commission on Human Rights, Human Rights Resolution 2005/41: Elimination of violence against women, E/CN.4/ RES/2005/41, 19 Apr. 2005, http://www.unhcr.org/refworld/docid/45377c59c.html, para. 5.76 CRC, General Comment No. 8, op cit., para. 11. See also UN study on violence against children, op. cit., para. 42; UNICEF, Domestic Violence Against Women and Girls, op cit., pp. 2–4.77 CRC, General Comment No. 8, op cit., para. 12; Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrad‑ing treatment or punishment, A/HRC/7/3, 15 Jan. 2008, http://www.unhcr.org/refworld/docid/47c2c5452. html, paras. 45–49.78 CRC, Art. 6.2.79 CRC, General Comment No. 7: Implementing Child Rights in Early Childhood, CRC/C/GC/7/Rev.1, 20 Sep. 2006 (hereafter “CRC, General Comment No. 7”) http://www.unhcr.org/refworld/docid/460bc5a62.html, para. 10.80 See CESCR, General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), E/1991/23, 14 Dec. 1990, http://www.unhcr.org/refworld/docid/4538838e10.html, para. 1; CRC, General Comment No. 5, para. 6.81 See UN Commission on Human Rights, Note verbale dated 86/12/05 from the Permanent Mission of the Netherlands to the United Nations Office at Geneva addressed to the Centre for Human Rights (“Limburg Principles”), 8 Jan. 1987, E/CN.4/1987/17 at B.16, 21–22, http://www.unhcr.org/refworld/docid/48abd5790.html; International Commission of Jurists, Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 26 Jan. 1997, http://www.unhcr.org/refworld/docid/48abd5730.html, at II.9 and 11.

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predicament which threatens the development and survival of that child. Similarly, a denial of med‑ical treatment, particularly where the child concerned suffers from a life‑threatening illness, may amount to persecution.82 Persecution may also be established through an accumulation of a num‑ber of less serious violations.83 This could, for instance, be the case where children with disabilities or stateless children lack access to birth registration and, as a result, are excluded from education, health care and other services.84

36. Measures of discrimination may amount to persecution when they lead to consequences of a substantially prejudicial nature for the child concerned.85 Children who lack adult care and support, are orphaned, abandoned or rejected by their parents, and are escaping violence in their homes may be particularly affected by such forms of discrimination. While it is clear that not all discrim‑inatory acts leading to the deprivation of economic, social and cultural rights necessarily equate to persecution, it is important to assess the consequences of such acts for each child concerned, now and in the future. For example, bearing in mind the fundamental importance of education and the significant impact a denial of this right may have for the future of a child, serious harm could arise if a child is denied access to education on a systematic basis.86 Education for girls may not be tolerated by society,87 or school attendance may become unbearable for the child due to harm experienced on racial or ethnic grounds.88

b) Agents of persecution

37. In child asylum claims, the agent of persecution is frequently a non‑State actor. This may in‑clude militarized groups, criminal gangs, parents and other caregivers, community and religious leaders. In such situations, the assessment of the well‑foundedness of the fear has to include con‑siderations as to whether or not the State is unable or unwilling to protect the victim.89 Whether or not the State or its agents have taken sufficient action to protect the child will need to be assessed on a case‑by‑case basis.

38. The assessment will depend not only on the existence of a legal system that criminalizes and provides sanctions for the persecutory conduct. It also depends on whether or not the authorities ensure that such incidents are effectively investigated and that those responsible are identified and appropriately punished.90 Hence, the enactment of legislation prohibiting or denouncing a particular persecutory practice against children, in itself, is not sufficient evidence to reject a child’s claim to refugee status.91

82 See, for instance, RRT Case No. N94/04178, N94/04178, Australia, Refugee Review Tribunal (hereafter “RRT”), 10 June 1994, http://www.unhcr.org/refworld/docid/3ae6b6300.html.83 UNHCR, Handbook, para. 53. See also Canada (Citizenship and Immigration) v. Oh, 2009 FC 506, Canada, Federal Court, 22 May 2009, http://www.unhcr.org/refworld/docid/4a897a1c2.html, at 10.84 See Case of the Yean and Bosico Children v. The Dominican Republic, IACtHR, 8 Sep. 2005, http://www.unhcr.org/refworld/ docid/44e497d94.html. Two girls of Haitian origin were denied the right to nationality and education because, among other matters, they did not have a birth certificate; Case of the “Juvenile Reeducation Institute” v. Paraguay, IACtHR, 2 Sep. 2004, http://www. unhcr.org/refworld/docid/4b17bab62.html. The Court found that failure to provide severely marginalized groups with access to basic health‑care services constitutes a violation of the right to life of the ACHR. See also, CRC, General Comment No. 7, para. 25; CRC, General Comment No. 9 (2006): The Rights of children with disabilities, CRC/C/GC/9, 27 Feb. 2007 (hereafter “CRC, General Comment No. 9”), http://www.unhcr.org/refworld/docid/461b93f72.html, paras. 35–36.85 UNHCR, Handbook, para. 54.86 See RRT Case No. V95/03256, [1995] RRTA 2263, Australia, RRT, 9 Oct. 1995, http://www.unhcr.org/refworld/docid/4b17c13a2. html, where the Tribunal found that “discriminatory denial of access to primary education is such a denial of a fundamental human right that it amounts to persecution.” at 47.87 See Ali v. Minister of Citizenship and Immigration, IMM‑3404‑95, Canada, IRB, 23 Sep. 1996, http://www.unhcr.org/refworld/ docid/4b18e21b2.html, which concerned a 9 year‑old girl from Afghanistan. The Court concluded that “Education is a basic human right and I direct the Board to find that she should be found to be a Convention refugee.”88 Decisions in both Canada and Australia have accepted that bullying and harassment of school children may amount to persecution. See, for instance, Decision VA1‑02828, VA1‑02826, VA1‑02827 and VA1‑02829, VA1‑02828, VA1‑02826, VA1‑02827 and VA1‑02829, Canada, IRB, 27 Feb. 2003, http://www.unhcr.org/refworld/docid/4b18e03d2.html, para. 36; RRT Case No. N03/46534, [2003] RRTA 670, Australia, RRT, 17 July 2003, http://www.unhcr.org/refworld/docid/4b17bfd62.html.89 See CRC, Art. 3, which imposes a duty on States Parties to ensure the protection and care of children in respect of actions by both State and private actors; ACHR, Arts. 17 and 19; African Charter, Arts. 1(3), 81. See also UNHCR, Handbook, para. 65; UNHCR, Guidelines on Gender‑Related Persecution, para. 19; Advisory Opinion on Juridical Condition and Human Rights of the Child, No. OC‑17/02, IACtHR, 28 Aug. 2002, http://www.unhcr.org/refworld/docid/4268c57c4.html.90 See, for instance, Velásquez Rodríguez Case, Series C, No. 4, IACtHR, 29 July 1988, para. 174 http://www.unhcr.org/refworld/docid/40279a9e4.html; M.C. v. Bulgaria, Application No. 39272/98, ECtHR, 3 Dec. 2003, http://www.unhcr.org/refworld/ docid/47b19f492.html. See also UN Com‑mittee on the Elimination of Discrimination Against Women, General Recommendations Nos. 19 and 20, adopted at the Eleventh Session, 1992 (contained in Document A/47/38), A/47/38, 1992, http://www.unhcr.org/refworld/docid/453882a422.html, para. 9; UN Commission on Human Rights, The due diligence standard as a tool for the elimination of violence against women: Report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, Yakin Ertürk, E/CN.4/2006/61, 20 Jan. 2006, http://www.unhcr.org/refworld/docid/45377afb0.html.91 UNHCR, Guidelines on Gender‑Related Persecution, para. 11.



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39. The child’s access to State protection also depends on the ability and willingness of the child’s parents, other primary caregiver or guardian to exercise rights and obtain protection on behalf of the child. This may include filing a complaint with the police, administrative authorities or public service institutions. However, not all children will have an adult who can represent them as is the case, for ex‑ample, where the child is unaccompanied or orphaned, or where a parent, other primary caregiver or guardian is the agent of persecution. It is important to remember that, due to their young age, children may not be able to approach law enforcement officials or articulate their fear or complaint in the same way as adults. Children may be more easily dismissed or not taken seriously by the officials concerned, and the officials themselves may lack the skills necessary to interview and listen to children.

c) The 1951 Convention grounds

40. As with adult claims to refugee status, it is necessary to establish whether or not the child’s well‑founded fear of persecution is linked to one or more of the five grounds listed in Article 1A(2) of the 1951 Convention. It is sufficient that the Convention ground be a factor relevant to the persecu‑tion, but it is not necessary that it be the sole, or even dominant, cause.

Race and nationality or ethnicity

41. Race and nationality or ethnicity is at the source of child asylum claims in many contexts. Policies that deny children of a particular race or ethnicity the right to a nationality or to be registered at birth,92 or that deny children from particular ethnic groups their right to education or to health servic‑es would fall into this category. This Convention ground would apply similarly to policies that aim to remove children from their parents on the basis of particular racial, ethnic or indigenous backgrounds. Systematic targeting of girls belonging to ethnic minorities for rape, trafficking, or recruitment into armed forces or groups also may be analysed within this Convention ground.

Religion

42. As with an adult, the religious beliefs of a child or refusal to hold such beliefs may put him/her at risk of persecution. For a Convention ground to be established, it is not necessary that the child be an active practitioner. It is sufficient that the child simply be perceived as holding a certain religious belief or belonging to a sect or religious group, for example, because of the religious beliefs of his/her parents.93

43. Children have limited, if any, influence over which religion they belong to or observe, and belong‑ing to a religion can be virtually as innate as one’s ethnicity or race. In some countries, religion assigns particular roles or behaviour to children. As a consequence, if a child does not fulfil his/her assigned role or refuses to abide by the religious code and is punished as a consequence, s/he may have a well‑founded fear of persecution on the basis of religion.

44. The reasons for persecution related to a child’s refusal to adhere to prescribed gender roles may also be analysed under this ground. Girls, in particular, may be affected by persecution on the basis of religion. Adolescent girls may be required to perform traditional slave duties or to provide sexual ser‑vices. They also may be required to undergo FGM or to be punished for honour crimes in the name of religion.94 In other contexts, children – both boys and girls – may be specifically targeted to join armed groups or the armed forces of a State in pursuit of religious or related ideologies.

Political opinion

45. The application of the Convention ground of “political opinion” is not limited to adult claims. A claim based on political opinion presupposes that the applicant holds, or is assumed to hold, opin‑

92 Universal Declaration of Human Rights, http://www.unhcr.org/refworld/docid/3ae6b3712c.html, Art. 15; ICCPR, Arts 24(2) and (3); CRC, Art. 7.93 UNHCR, Guidelines on International Protection No. 6: Religion‑Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, HCR/GIP/04/06, 28 Apr. 2004 (hereafter, “UNHCR, Guidelines on Religion‑Based Persecution”), http://www.unhcr.org/refworld/docid/4090f9794.html.94 Ibid., para. 24.

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ions not tolerated by the authorities or society and that are critical of generally accepted policies, traditions or methods. Whether or not a child is capable of holding a political opinion is a question of fact and is to be determined by assessing the child’s level of maturity and development, level of education, and his/her ability to articulate those views. It is important to acknowledge that chil‑dren can be politically active and hold particular political opinions independently of adults and for which they may fear being persecuted. Many national liberation or protest movements are driven by student activists, including schoolchildren. For example, children may be involved in distributing pamphlets, participating in demonstrations, acting as couriers or engaging in subversive activities.

46. In addition, the views or opinions of adults, such as the parents, may be imputed to their chil‑dren by the authorities or by non‑State actors.95 This may be the case even if a child is unable to articulate the political views or activities of the parent, including where the parent deliberately withholds such information from the child to protect him/her. In such circumstances, these cases should be analysed not only according to the political opinion ground but also in terms of the ground pertaining to membership of a particular social group (in this case, the “family”).

47. The grounds of (imputed) political opinion and religion may frequently overlap in child asylum claims. In certain societies, the role ascribed to women and girls may be attributable to the require‑ments of the State or official religion. The authorities or other agents of persecution may perceive the failure of a girl to conform to this role as a failure to practice or to hold certain religious beliefs. At the same time, failure to conform could be interpreted as holding an unacceptable political opinion that threatens fundamental power structures. This may be the case particularly in societies where there is little separation between religious and State institutions, laws and doctrines.96

Membership of a particular social group

48. Children’s claims to refugee status most often have been analysed in the context of the Con‑vention ground of “membership of a particular social group”, although any of the Convention grounds may be applicable. As stated in UNHCR’s Guidelines

[a] particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.97

49. Although age, in strict terms, is neither innate nor permanent as it changes continuously, being a child is in effect an immutable characteristic at any given point in time. A child is clearly unable to disassociate him/herself from his/her age in order to avoid the persecution feared.98 The fact that the child eventually will grow older is irrelevant to the identification of a particular social group, as this is based on the facts as presented in the asylum claim. Being a child is directly relevant to one’s identity, both in the eyes of society and from the perspective of the individual child. Many government policies are age‑driven or age‑related, such as the age for military conscription, the age for sexual consent, the age of marriage, or the age for starting and leaving school. Children also share many general characteristics, such as innocence, relative immaturity, impressionability and evolving capacities. In most societies, children are set apart from adults as they are understood to require special attention or care, and they are referred to by a range of descriptors used to identify or label them, such as “young”, “infant”, “child”, “boy”, “girl” or “adolescent”. The identification of

95 See Matter of Timnit Daniel and Simret Daniel, A70 483 789 & A70 483 774, U.S. BIA, 31 Jan. 2002 (unpublished, non‑ precedent setting decision). The Court found that the notion “that the respondents were too young to have an actual political opinion is irrelevant; it is enough that the officials believed that they supported the EPLF.”96 UNHCR, Guidelines on Gender‑Related Persecution, op. cit. para. 26.97 UNHCR, Guidelines on International Protection No. 2: ‘Membership of a Particular Social Group’ within the context of Article 1A(2) of the 1951 Con‑vention and/or its 1967 Protocol Relating to the Status of Refugees, HCR/GIP/02/02, 7 May 2002, http://www.unhcr.org/refworld/docid/3d36f23f4.html, para. 11.98 See Matter of S‑E‑G‑, et al., 24 I&N Dec. 579 (BIA 2008), U.S. BIA, 30 July 2008, http://www.unhcr.org/refworld/ docid/4891da5b2.html, which noted that “we acknowledge that the mutability of age is not within one’s control, and that if an individual has been persecuted in the past on ac‑count of an age‑described particular social group, or faces such persecution at a time when that individual’s age places him within the group, a claim for asylum may still be cognizable.” (p. 583); LQ (Age: Immutable Characteristic) Afghanistan v. Secretary of State for the Home Department, [2008] U.K. AIT 00005, 15 Mar. 2007, http:// www.unhcr.org/refworld/docid/47a04ac32.html, finding that the applicant, “although, assuming he survives, he will in due course cease to be a child, he is immutably a child at the time of assessment” at 6; Decision V99‑02929, V99‑02929, Canada, IRB, 21 Feb. 2000, http://www.unhcr.org/refworld/docid/4b18e5592.html, which found that “[t]he child’s vulnerability arises as a result of his status as a minor. His vulnerability as a minor is an innate and unchangeable characteristic, notwithstanding the child will grow into an adult.”

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social groups also may be assisted by the fact that the children share a common socially‑constructed experience, such as being abused, abandoned, impoverished or internally displaced.

50. A range of child groupings, thus, can be the basis of a claim to refugee status under the “member‑ship of a particular social group” ground. Just as “women” have been recognized as a particular social group in several jurisdictions, “children” or a smaller subset of children may also constitute a particular social group.99 Age and other characteristics may give rise to groups such as “abandoned children”,100 “children with disabilities”, “orphans”, or children born outside coercive family planning policies or of unauthorized marriages, also referred to as “black children”.101 The applicant’s family may also consti‑tute a relevant social group.102

51. The applicant’s membership in a child‑based social group does not necessarily cease to exist mere‑ly because his/her childhood ends. The consequences of having previously belonged to such a social group might not end even if the key factor of that identity (that is, the applicant’s young age) is no longer applicable. For instance, a past shared experience may be a characteristic that is unchangeable and historic and may support the identification of groups such as “former child soldiers”103 or “traf‑ficked children” for the purposes of a fear of future persecution.104

52. Some of the more prominent social groupings include the following:

i. Street children may be considered a particular social group. Children living and/or working on the streets are among the most visible of all children, often identified by society as social outcasts. They share the common characteristics of their youth and having the street as their home and/or source of livelihood. Especially for children who have grown up in such situations, their way of life is fun‑damental to their identity and often difficult to change. Many of these children have embraced the term “street children” as it offers them a sense of identity and belonging while they may live and/ or work on the streets for a range of reasons. They also may share past experiences such as domestic violence, sexual abuse, and exploitation or being orphaned or abandoned.105

ii. Children affected by HIV/AIDS, including both those who are HIV‑positive and those with an HIV‑positive parent or other relative, may also be considered a particular social group. The fact of being HIV‑positive exists independently of the persecution they may suffer as a consequence of their HIV status. Their status or that of their family may set them apart and, while manageable and/or treatable, their status is by and large unchangeable.106

iii. Where children are singled out as a target group for recruitment or use by an armed force or group, they may form a particular social group due to the innate and unchangeable nature of their age as well as the fact that they are perceived as a group by the society in which they live. As with adults, a child who evades the draft, deserts or otherwise refuses to become associated with an armed force may be perceived as holding a political opinion in which case the link to the Convention ground of political opinion may also be established.107

99 In In re Fauziya Kasinga, op. cit., it was held that “young women” may constitute a particular social group.100 In V97‑03500, Canada, Convention Refugee Determination Division, 31 May 1999, it was accepted that abandoned children in Mexico can be a particular social group. (A summary is available at http://www2.irb‑cisr.gc.ca/en/decisions/reflex/index_e. htm?action=article.view&id=1749). See also RRT Case No. 0805331, [2009] RRTA 347, Australia, RRT, 30 April 2009, http://www. unhcr.org/refworld/docid/4a2681692.html, where the Tribunal held that the applicant’s (a two‑year old child) particular social group was “children of persecuted dissidents”.101 This has been affirmed in several decisions in Australia. See, for instance, Chen Shi Hai, op. cit. and more recently in RRT Case No. 0901642, [2009] RRTA 502, Australia, RRT, 3 June 2009, http://www.unhcr.org/refworld/docid/4a76ddbf2.html.102 See Aguirre‑Cervantes, op. cit., where the Court found that “[f]amily membership is clearly an immutable characteristic, fundamental to one’s identity”, and noted that “[t]he undisputed evidence demonstrates that Mr. Aguirre’s goal was to dominate and persecute members of his immediate family.”103 In Lukwago v. Ashcroft, Attorney General, 02‑1812, U.S. Court of Appeals for the 3rd Circuit, 14 May 2003, http://www.unhcr. org/refworld/do‑cid/47a7078c3.html, the Court found that “membership in the group of former child soldiers who have escaped LRA captivity fits precisely within the BIA’s own recognition that a shared past experience may be enough to link members of a ‘particular social group’.”104 UNHCR, Guidelines on Victims of Trafficking, para. 39. See also, RRT Case No. N02/42226, [2003] RRTA 615, Australia, RRT, 30 June 2003, http://www.unhcr.org/refworld/docid/4b17c2b02.html, which concerned a young woman from Uzbekistan. The identified group was “Uzbekistani women forced into prostitution abroad who are perceived to have transgressed social mores.”105 See, for instance, Matter of B‑F‑O‑, A78 677 043, U.S. BIA, 6 Nov. 2001 (unpublished, non‑precedent decision). The Court found that the applicant, who was an abandoned street child, had a well‑founded fear of persecution based on membership in a particular social group. See also, LQ (Age: Immuta‑ble Characteristic) Afghanistan v. Secretary of State for the Home Department, op. cit. The Tribunal found that the applicant’s fear of harm as an orphan and street child “would be as a result of his membership in a part of a group sharing an immutable characteristic and constituting, for the purposes of the Refugee Convention, a particular social group”, at 7.106 See further, CRC, General Comment No. 3: HIV/AIDS and the Rights of the Child, 17 Mar. 2003, http://www.unhcr.org/refworld/docid/4538834e15.html.107 UNHCR, Handbook, paras. 169–171; UNHCR, Guidelines on Religion‑Based Persecution, paras. 25–26.

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d) Internal “flight” or “relocation” alternative

53. An assessment of the issue of internal flight alternative contains two parts: the relevance of such an inquiry, and the reasonableness of any proposed area of internal relocation.108 The child’s best interests inform both the relevance and reasonableness assessments.

54. As in the case of adults, internal relocation is only relevant where the applicant can access practically, safely and legally the place of relocation.109 In particular with regard to gender‑based persecution, such as domestic violence and FGM which are typically perpetrated by private actors, the lack of effective State protection in one part of the country may be an indication that the State may also not be able or willing to protect the child in any other part of the country.110 If the child were to relocate, for example, from a rural to an urban area, the protection risks in the place of re‑location would also need to be examined carefully, taking into account the age and coping capacity of the child.

55. In cases where an internal flight or relocation alternative is deemed relevant, a proposed site of internal relocation that may be reasonable in the case of an adult may not be reasonable in the case of a child. The “reasonableness test” is one that is applicant‑specific and, thus, not related to a hypothetical “reasonable person”. Age and the best interests of the child are among the factors to be considered in assessing the viability of a proposed place of internal relocation.111

56. Where children are unaccompanied and, therefore, not returning to the country of origin with family members or other adult support, special attention needs to be paid as to whether or not such relocation is reasonable. Internal flight or relocation alternatives, for instance, would not be appropriate in cases where unaccompanied children have no known relatives living in the country of origin and willing to support or care for them and it is proposed that they relocate to live on their own without adequate State care and assistance. What is merely inconvenient for an adult might well constitute undue hardship for a child, particularly in the absence of any friend or relation.112 Such relocation may violate the human right to life, survival and development, the principle of the best interests of the child, and the right not to be subjected to inhuman treatment.113

57. If the only available relocation option is to place the child in institutional care, a proper assess‑ment needs to be conducted of the care, health and educational facilities that would be provided and with regard to the long‑term life prospects of adults who were institutionalized as children.114 The treatment as well as social and cultural perceptions of orphans and other children in insti‑tutionalized care needs to be evaluated carefully as such children may be the subject of societal disapproval, prejudice or abuse, thus rendering the proposed site for relocation unreasonable in particular circumstances.

e) The application of exclusion clauses to children

58. The exclusion clauses contained in Article 1F of the 1951 Convention provide that certain acts are so grave that they render their perpetrators undeserving of international protection as refu‑

108 UNHCR, Guidelines on International Protection No. 4: “Internal Flight or Relocation Alternative” Within the Context of Article 1A(2) of the 1951 Conven‑tion and/or 1967 Protocol Relating to the Status of Refugees, HCR/GIP/03/04, 23 July 2003, http://www. unhcr.org/refworld/docid/3f2791a44.html.109 Ibid., para. 7.110 Ibid., para. 15.111 Ibid., para. 25. See further factors in the CRC, General Comment No. 6, para. 84, on Return to Country of Origin. Although drafted with a different context in mind, these factors are equally relevant to an assessment of an internal flight/relocation alternative.112 See, for instance, Elmi v. Minister of Citizenship and Immigration, Canada, Federal Court, No. IMM‑580‑98, 12 Mar. 1999, http://www.unhcr.org/refworld/docid/4b17c5932.html.113 CRC, Arts. 3, 6 and 37. See also Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, Application No. 13178/03, ECtHR,12 Oct. 2006, http://www.unhcr.org/refworld/docid/45d5cef72.html, which concerned the return (not internal relocation) of an unaccompanied five‑year old girl. The Court was “struck by the failure to provide adequate preparation, supervision and safeguards for her deportation”, noting further that such “conditions was bound to cause her extreme anxiety and demonstrated such a total lack of humanity towards someone of her age and in her situation as an unaccompanied minor as to amount to inhuman treatment [violation of article 3 of the European Convention on Human Rights]”, paras. 66, 69.114 See CRC, General Comment No. 6, para. 85. See also Inter‑Agency Guiding Principles, op cit., which notes that institutional care needs to be consid‑ered a last resort, as “residential institutions can rarely offer the developmental care and support a child requires and often cannot even provide a reasonable standard of protection”, p. 46.

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gees.115 Since Article 1F is intended to protect the integrity of asylum, it needs to be applied “scrupu‑lously”. As with any exception to human rights guarantees, a restrictive interpretation of the exclusion clauses is required in view of the serious possible consequences of exclusion for the individual.116 The exclusion clauses are exhaustively enumerated in Article 1F, and no reservations are permitted.117

59. In view of the particular circumstances and vulnerabilities of children, the application of the exclu‑sion clauses to children always needs to be exercised with great caution. In the case of young children, the exclusion clauses may not apply at all. Where children are alleged to have committed crimes while their own rights were being violated (for instance while being associated with armed forces or armed groups), it is important to bear in mind that they may be victims of offences against international law and not just perpetrators.118

60. Although the exclusion clauses of Article 1F do not distinguish between adults and children, Article 1F can be applied to a child only if s/he has reached the age of criminal responsibility as established by international and/or national law at the time of the commission of the excludable act.119 Thus, a child below such minimum age cannot be considered responsible for an excludable act.120 Article 40 of the CRC requires States to establish a minimum age for criminal responsibility, but there is no universally recognized age limit.121 In different jurisdictions, the minimum age ranges from 7 years to higher ages, such as 16 or 18 years, while the Statutes of the Special Court for Sierra Leone122 and the International Criminal Court123 set the cut‑off age at 15 years and 18 years respectively.

61. In view of the disparities in establishing a minimum age for criminal responsibility by States and in different jurisdictions, the emotional, mental and intellectual maturity of any child over the relevant national age limit for criminal responsibility would need to be evaluated to determine whether s/he had the mental capacity to be held responsible for a crime within the scope of Article 1F. Such con‑siderations are particularly important where the age limit is lower on the scale but is also relevant if there is no proof of age and it cannot be established that the child is at, or above, the age for criminal responsibility. The younger the child, the greater the presumption that the requisite mental capacity did not exist at the relevant time.

62. As with any exclusion analysis, a three‑step analysis needs to be undertaken if there are indica‑tions that the child has been involved in conduct which may give rise to exclusion.124 Such an analysis requires that: (i) the acts in question be assessed against the exclusion grounds, taking into account the nature of the acts as well as the context and all individual circumstances in which they occurred; (ii) it be established in each case that the child committed a crime which is covered by one of the sub‑clauses of Article 1F, or that the child participated in the commission of such a crime in a manner

115 UNHCR’s interpretative legal guidance on the substantive and procedural standards for the application of Art. 1F is set out in UNHCR, Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, HCR/GIP/03/05, 4 Sep. 2003, (hereafter: “UNHCR, Guidelines on Exclusion”) http://www.unhcr. org/refworld/docid/3f5857684.html; UNHCR, Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 Sep. 2003, (hereafter “UNHCR, Background Note on Exclusion”), http://www. unhcr.org/refworld/docid/3f5857d24.html; UNHCR, Statement on Article 1F of the 1951 Convention, July 2009, (hereafter “UNHCR, Statement on Article 1F”), http://www.unhcr.org/refworld/docid/4a5de2992.html; and UNHCR, Handbook, paras. 140–163.116 UNHCR, Guidelines on Exclusion, para. 2; UNHCR Background Note on Exclusion, para. 4. UNHCR, Handbook para. 149. See also ExCom Conclusions No. 82 (XLVIII), Safeguarding Asylum, 17 Oct. 1997, http://www.unhcr.org/refworld/docid/3ae68c958. html, para. (v); No. 102 (LVI) 2005, General Conclu‑sion on International Protection, 7 Oct. 2005, http://www.unhcr.org/refworld/ docid/43575ce3e.html, para. (i); No. 103 (LVI), Conclusion on the Provision on International Protection Including Through Complementary Forms of Protection, 7 Oct. 2005, http://www.unhcr.org/refworld/docid/43576e292.html, para. (d).117 UNHCR, Guidelines on Exclusion, para. 3; UNHCR, Background Note on Exclusion, para. 7.118 The Paris Principles state: “Children who are accused of crimes under international law allegedly committed while they were associated with armed forces or armed groups should be considered primarily as victims of offences against international law; not only as perpetrators. They must be treated in accordance with international law in a framework of restorative justice and social rehabilitation, consistent with international law which offers children special protection through numerous agreements and principles,” para. 3.6. It should also be noted that the prosecutor for the SCSL chose not to prose‑cute children between the ages of 15 and 18 years given that they themselves were victims of international crimes.119 UNHCR, Guidelines on Exclusion, para. 28.120 UNHCR, Background Note on Exclusion, para. 91. If the age of criminal responsibly is higher in the country of origin than in the host country, this should be taken into account in the child’s favour.121 The Committee on the Rights of the Child urged States not to lower the minimum age to 12 years and noted that a higher age, such as 14 or 16 years, “contributes to a juvenile justice system which […] deals with children in conflict with the law without resorting to judicial proceedings”; see, CRC, General Comment No. 10 (2007): Children’s Rights in Juvenile Justice, CRC/C/GC/10, 25 Apr. 2007, http://www.unhcr.org/refworld/docid/4670fca12.html, para. 33. See also UN General Assembly, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), A/RES/40/33, 29 Nov. 1985, http://www. unhcr.org/refworld/docid/3b00f2203c.html, which provides that the “beginning of that age should not be fixed at a too low an age level bearing in mind the facts of emotional, mental and intellectual maturity”, Art. 4.1.122 UN Security Council, Statute of the Special Court for Sierra Leone, 16 Jan. 2002, Art. 7.123 ICC Statute, Art. 26.124 For further information on exclusion concerning child soldiers, see UNHCR, Advisory Opinion From the Office of the United Nations High Commissioner for Refugees (UNHCR) Regarding the International Standards for Exclusion From Refugee Status as Applied to Child Soldiers, 12 Sep. 2005 (hereafter “UNHCR, Advisory Opinion on the Application of Exclusion Clauses to Child Soldiers”), http://www.unhcr.org/refworld/docid/440eda694.html.



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which gives rise to criminal liability in accordance with internationally applicable standards; and (iii) it be determined, in cases where individual responsibility is established, whether the consequences of exclusion from refugee status are proportional to the seriousness of the act committed.125

63. It is important to undertake a thorough and individualized analysis of all circumstances in each case. In the case of a child, the exclusion analysis needs to take into account not only general exclusion principles but also the rules and principles that address the special status, rights and protection afforded to children under international and national law at all stages of the asylum pro‑cedure. In particular, those principles related to the best interest of the child, the mental capacity of children and their ability to understand and consent to acts that they are requested or ordered to undertake need to be considered. A rigorous application of legal and procedural standards of exclusion is also critical.126

64. Based on the above, the following considerations are of central importance in the application of the exclusion clauses to acts committed by children:

i. When determining individual responsibility for excludable acts, the issue of whether or not a child has the necessary mental state (or mens rea), that is, whether or not the child acted with the requisite intent and knowledge to be held individually responsible for an excludable act, is a central factor in the exclusion analysis. This assessment needs to consider elements such as the child’s emotional, mental and intellectual development. It is important to determine whether the child was sufficiently mature to understand the nature and consequences of his/her conduct and, thus, to commit, or participate in, the commission of the crime. Grounds for the absence of the mens rea include, for example, severe mental disabilities, involuntary intox‑ication, or immaturity.

ii. If mental capacity is established, other grounds for rejecting individual responsibility need to be examined, notably whether the child acted under duress, coercion, or in defence of self or others. Such factors are of particular relevance when assessing claims made by former child soldiers. Additional factors to consider may include: the age at which the child became involved in the armed forces or group; the reasons for which s/he joined and left the armed forces or group; the length of time s/he was a member; the consequences of refusal to join the group; any forced use of drugs, alcohol or medication; the level of education and understand‑ing of the events in question; and the trauma, abuse or ill‑treatment suffered.127

iii. Finally, if individual responsibility is established, it needs to be determined whether or not the consequences of exclusion from refugee status are proportional to the seriousness of the act committed.128 This generally involves a weighing of the gravity of the offence against the de‑gree of persecution feared upon return. If the applicant is likely to face severe persecution, the crime in question needs to be very serious in order to exclude him/her from refugee status. Is‑sues for consideration include any mitigating or aggravating factors relevant to the case. When assessing a child’s claim, even if the circumstances do not give rise to a defence, factors such as the age, maturity and vulnerability of the child are important considerations. In the case of child soldiers, such factors include ill‑treatment by military personnel and circumstances dur‑ing service. The consequences and treatment that the child may face upon return (i.e. serious human rights violations as a consequence of having escaped the armed forces or group) also need to be considered.

125 UNHCR, Statement on Article 1F, p. 7.126 For a detailed analysis on procedural issues regarding exclusion, see UNHCR, Guidelines on Exclusion, paras. 31–36 and UNHCR, Background Note on Exclusion, paras. 98–113.127 Decisions in France have recognized that children who committed offences, which should in principle lead to the application of the exclusion clauses, may be exonerated if they were in particularly vulnerable situations. See, for instance, 459358, M.V.; Exclusion, CRR, 28 Apr. 2005, http://www.unhcr.org/refworld/docid/43abf5cf4.html; 448119, M.C, CRR, 28 Jan. 2005, http://www. unhcr.org/refworld/docid/4b17b5d92.html. See also, MH (Syria) v. Secretary of State for the Home Department; DS (Afghanistan) v. Secretary of State for the Home Department, [2009] EWCA Civ 226, Court of Appeal (U.K.), 24 Mar. 2009, http://www.unhcr. org/refworld/docid/49ca60ae2.html, para. 3. For detailed guidance on grounds rejecting individual responsibility, see, UNHCR Guidelines on Exclusion, paras. 21–24. UNHCR, Background Note on Exclusion, paras. 91–93. UNHCR, Advisory Opinion on the Application of Exclusion Clauses to Child Soldiers, op cit. pp. 10–12.128 For detailed guidance on proportionality see UNHCR, Guidelines on Exclusion, para. 24; UNHCR, Background Note on Exclusion, paras. 76–78.

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IV. PROCEDURAL AND EVIDENTIARY ISSUES

65. Due to their young age, dependency and relative immaturity, children should enjoy specific proce‑dural and evidentiary safeguards to ensure that fair refugee status determination decisions are reached with respect to their claims.129 The general measures outlined below set out minimum standards for the treatment of children during the asylum procedure. They do not preclude the application of the de‑tailed guidance provided, for example, in the Action for the Rights of Children Resources Pack,130 the In‑ter‑Agency Guiding Principles on Unaccompanied and Separated Children and in national guidelines.131

66. Claims made by child applicants, whether they are accompanied or not, should normally be pro‑cessed on a priority basis, as they often will have special protection and assistance needs. Priority processing means reduced waiting periods at each stage of the asylum procedure, including as regards the issuance of a decision on the claim. However, before the start of the procedure, children require sufficient time in which to prepare for and reflect on rendering the account of their experiences. They will need time to build trusting relationships with their guardian and other professional staff and to feel safe and secure. Generally, where the claim of the child is directly related to the claims of accompany‑ing family members or the child is applying for derivative status, it will not be necessary to prioritise the claim of the child unless other considerations suggest that priority processing is appropriate.132

67. There is no general rule prescribing in whose name a child’s asylum claim ought to be made, espe‑cially where the child is particularly young or a claim is based on a parent’s fear for their child’s safety. This will depend on applicable national regulations. Sufficient flexibility is needed, nevertheless, to allow the name of the principal applicant to be amended during proceedings if, for instance, it emerges that the more appropriate principal applicant is the child rather than the child’s parent. This flexibility ensures that administrative technicalities do not unnecessarily prolong the process.133

68. For unaccompanied and separated child applicants, efforts need to be made as soon as possible to initiate tracing and family reunification with parents or other family members. There will be excep‑tions, however, to these priorities where information becomes available suggesting that tracing or reunification could put the parents or other family members in danger, that the child has been sub‑jected to abuse or neglect, and/ or where parents or family members may be implicated or have been involved in their persecution.134

69. An independent, qualified guardian needs to be appointed immediately, free of charge in the case of unaccompanied or separated children. Children who are the principal applicants in an asylum pro‑cedure are also entitled to a legal representative.135 Such representatives should be properly trained and should support the child throughout the procedure.

70. The right of children to express their views and to participate in a meaningful way is also important in the context of asylum procedures.136 A child’s own account of his/her experience is often essential

129 The relevant applicable age for children to benefit from the additional procedural safeguards elaborated in this section is the date the child seeks asylum and not the date a decision is reached. This is to be distinguished from the substantive assessment of their refugee claim in which the prospective nature of the inquiry requires that their age at the time of the decision may also be relevant.130 Action for the rights of children, ARC Resource Pack, a capacity building tool for child protection in and after emergencies, produced by Save the Children, UNHCR, UNICEF, OHCHR, International Rescue Committee and Terre des Hommes, 7 Dec. 2009, http://www.savethechildren.net/arc.131 See, for instance, U.K. Asylum Instruction, Processing an Asylum Application from a Child, 2 Nov. 2009, http://www.bia.homeoffice.gov.uk/sitecontent/documents/policyandlaw/asylumprocessguidance/specialcases/guidance/ processingasylumapplication1.pdf?view=Binary; U.K. Border Agency Code of Practice for Keeping Children Safe from Harm, Dec. 2008, http://www.unhcr.org/refworld/docid/4948f8662.html; Finland, Directorate of Immigration, Guidelines for Interviewing (Separated) Minors, Mar. 2002, http://www.unhcr.org/refworld/docid/430ae8d72.html; U.S. Guidelines For Children’s Asylum Claims, op cit.; Canada, IRB, Guidelines Issued by the Chairperson Pursuant to Section 65(4) of the Immigration Act: Guideline 3 – Child Refugee Claimants: Procedural and Evidentiary Issues, 30 Sep. 1996, No. 3, http://www.unhcr.org/refworld/docid/3ae6b31d3b.html.132 UNHCR, Procedural Standards for Refugee Status Determination Under UNHCR’s Mandate, 20 Nov. 2003, http://www.unhcr. org/refworld/docid/42d‑66dd84.html, pages 3.25, 4.21–4.23.133 This is especially relevant in relation to claims, such as FGM or forced marriage, where parents flee with their child in fear for his/her life although the child may not fully comprehend the reason for flight.134 Family tracing and reunification have been addressed in a number of ExCom Conclusions, including most recently in ExCom, Conclusion No. 107, para. (h)(iii). See also UNHCR, Guidelines on Determining the Best Interests of the Child, op cit.; CRC, General Comment No. 6, para. 81.135 “Guardian” here refers to an independent person with specialized skills who looks after the child’s best interests and general well‑being. Procedures for the appointment of a guardian must not be less favourable than the existing national administrative or judicial procedures used for appointing guardians for children who are nationals in the country. “Legal representative” refers to a lawyer or other person qualified to provide legal assistance to, and inform, the child in the asylum proceedings and in relation to contacts with the authorities on legal matters. See ExCom, Conclusion No. 107, para. (g)(viii). For further details, see CRC, General Comment No. 6, paras. 33–38, 69. See also UNHCR, Guidelines on Unaccompanied Children Seeking Asylum, op cit., p. 2 and paras. 4.2, 5.7, 8.3, 8.5.136 CRC, Art. 12. The CRC does not set any lower age limit on children’s right to express their views freely as it is clear that children can and do form views from a very early age.

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for the identification of his/her individual protection requirements and, in many cases, the child will be the only source of this information. Ensuring that the child has the opportunity to express these views and needs requires the development and integration of safe and child‑appropriate procedures and environments that generate trust at all stages of the asylum process. It is important that children be provided with all necessary information in a language and manner they understand about the possible existing options and the consequences arising from them.137 This includes in‑formation about their right to privacy and confidentiality enabling them to express their views without coercion, constraint or fear of retribution.138

71. Appropriate communication methods need to be selected for the different stages of the pro‑cedure, including the asylum interview, and need to take into account the age, gender, cultural background and maturity of the child as well as the circumstances of the flight and mode of ar‑rival.139 Useful, non‑verbal communication methods for children might include playing, drawing, writing, role‑playing, story‑telling and singing. Children with disabilities require “whatever mode of communication they need to facilitate expressing their views”.140

72. Children cannot be expected to provide adult‑like accounts of their experiences. They may have difficulty articulating their fear for a range of reasons, including trauma, parental instructions, lack of education, fear of State authorities or persons in positions of power, use of ready‑made tes‑timony by smugglers, or fear of reprisals. They may be too young or immature to be able to evaluate what information is important or to interpret what they have witnessed or experienced in a manner that is easily understandable to an adult. Some children may omit or distort vital information or be unable to differentiate the imagined from reality. They also may experience difficulty relating to abstract notions, such as time or distance. Thus, what might constitute a lie in the case of an adult might not necessarily be a lie in the case of a child. It is, therefore, essential that examiners have the necessary training and skills to be able to evaluate accurately the reliability and significance of the child’s account.141 This may require involving experts in interviewing children outside a formal setting or observing children and communicating with them in an environment where they feel safe, for example, in a reception centre.

73. Although the burden of proof usually is shared between the examiner and the applicant in adult claims, it may be necessary for an examiner to assume a greater burden of proof in children’s claims, especially if the child concerned is unaccompanied.142 If the facts of the case cannot be ascertained and/or the child is incapable of fully articulating his/her claim, the examiner needs to make a deci‑sion on the basis of all known circumstances, which may call for a liberal application of the benefit of the doubt.143 Similarly, the child should be given the benefit of the doubt should there be some concern regarding the credibility of parts of his/her claim.144

74. Just as country of origin information may be gender‑biased to the extent that it is more likely to reflect male as opposed to female experiences, the experiences of children may also be ignored. In addition, children may have only limited knowledge of conditions in the country of origin or may be unable to explain the reasons for their persecution. For these reasons, asylum authorities need to make special efforts to gather relevant country of origin information and other supporting evidence.

75. Age assessments are conducted in cases when a child’s age is in doubt and need to be part of a comprehensive assessment that takes into account both the physical appearance and the psychological maturity of the individual.145 It is important that such assessments are conducted in a safe, child‑ and gender‑sensitive manner with due respect for human dignity. The margin of appreciation inherent to all age‑assessment methods needs to be applied in such a manner that,

137 CRC, General Comment No. 6, para. 25; CRC, General Comment No. 12, paras. 123–124.138 CRC, Arts. 13, 17.139 Separated Children in Europe Programme, SCEP Statement of Good Practice, Third edition, 2004, http://www.unhcr.org/refworld/do‑cid/415450694.html, para. 12.1.3.140 CRC, General Comment No. 9, para. 32.141 ExCom, Conclusion No. 107, para. (d).142 Ibid., para. (g)(viii), which recommends that States develop adapted evidentiary requirements.143 UNHCR, Handbook, paras. 196, 219.144 Inter‑Agency Guiding Principles, op. cit., p. 61.145 ExCom, Conclusion No. 107, para. (g)(ix).




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in case of uncertainty, the individual will be considered a child.146 As age is not calculated in the same way universally or given the same degree of importance, caution needs to be exercised in making adverse inferences of credibility where cultural or country standards appear to lower or raise a child’s age. Children need to be given clear information about the purpose and process of the age‑assess‑ment procedure in a language they understand. Before an age assessment procedure is carried out, it is important that a qualified independent guardian is appointed to advise the child.

76. In normal circumstances, DNA testing will only be done when authorized by law and with the consent of the individuals to be tested, and all individuals will be provided with a full explanation of the reasons for such testing. In some cases, however, children may not be able to consent due to their age, immaturity, inability to understand what this entails or for other reasons. In such situations, their appointed guardian (in the absence of a family member) will grant or deny consent on their behalf tak‑ing into account the views of the child. DNA tests should be used only where other means for verifi‑cation have proven insufficient. They may prove particularly beneficial in the case of children who are suspected of having been trafficked by individuals claiming to be parents, siblings or other relatives.147

77. Decisions need to be communicated to children in a language and in a manner they understand. Children need to be informed of the decision in person, in the presence of their guardian, legal rep‑resentative, and/or other support person, in a supportive and non‑threatening environment. If the decision is negative, particular care will need to be taken in delivering the message to the child and explaining what next steps may be taken in order to avoid or reduce psychological stress or harm.

146 Ibid., para. (g)(ix); UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, op cit., paras. 5.11, 6.147 UNHCR, Note on DNA Testing to Establish Family Relationships in the Refugee Context, June 2008, http://www.unhcr.org/refworld/docid/48620c2d2.html.

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Distr. GENERAL HCR/GIP/12/09 23 October 2012 Original: ENGLISH


Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees

UNHCR issues these Guidelines pursuant to its mandate, as contained in the Statute of the Office of the United Nations High Commissioner for Refugees, in conjunction with Article 35 of the 1951 Convention relating to the Status of Refugees and Article II of its 1967 Protocol. These Guidelines complement the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention (Reissued, Geneva, 2011). In particular, they should be read in conjunction with UNHCR’s Guidelines on International Protection No.1: Gender‑Related Persecution within the con‑text of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (May 2002); UNHCR’s Guidelines on International Protection No. 2: “Membership of a Particular Social Group” Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (May 2002); and UNHCR’s Guidelines on International Protection No. 6: Re‑ligion‑Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol re‑lating to the Status of Refugees (April 2004). They replace UNHCR’s Guidance Note on Refugee Claims relating to Sexual Orientation and Gender Identity (November 2008).

These Guidelines are intended to provide legal interpretative guidance for governments, legal practitioners, decision makers and the judiciary, as well as UNHCR staff carrying out refugee status determination under its mandate.

The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and the Guide‑lines on International Protection are available as a compilation at: http://www.unhcr.org/refworld/ docid/4f33c8d92.html.

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I. INTRODUCTION

1. In many parts of the world, individuals experience serious human rights abuses and other forms of persecution due to their actual or perceived sexual orientation and/or gender identity. While perse‑cution of Lesbian, Gay, Bisexual, Transgender and Intersex (hereafter “LGBTI”)1 individuals and those perceived to be LGBTI is not a new phenomenon,2 there is greater awareness in many countries of asylum that people fleeing persecution for reasons of their sexual orientation and/or gender identity can qualify as refugees under Article 1A(2) of the 1951 Convention relating to the Status of Refugees and/or its 1967 Protocol (hereafter the “1951 Convention”).3 Nevertheless, the application of the refugee definition remains inconsistent in this area.

2. It is widely documented that LGBTI individuals are the targets of killings, sexual and gender‑based violence, physical attacks, torture, arbitrary detention, accusations of immoral or deviant behaviour, denial of the rights to assembly, expression and information, and discrimination in employment, health and education in all regions around the world.4 Many countries maintain severe criminal laws for con‑sensual same‑sex relations, a number of which stipulate imprisonment, corporal punishment and/or the death penalty.5 In these and other countries, the authorities may not be willing or able to protect individuals from abuse and persecution by non‑State actors, resulting in impunity for perpetrators and implicit, if not explicit, tolerance of such abuse and persecution.

3. Intersecting factors that may contribute to and compound the effects of violence and discrimi‑nation include sex, age, nationality, ethnicity/race, social or economic status and HIV status. Due to these multiple layers of discrimination, LGBTI individuals are often highly marginalized in society and isolated from their communities and families. It is also not uncommon for some individuals to harbour feelings of shame and/or internalized homophobia. Because of these and other factors, they may be inhibited from informing asylum adjudicators that their real fear of persecution relates to their sexual orientation and/or gender identity.

4. The experiences of LGBTI persons vary greatly and are strongly influenced by their cultural, eco‑nomic, family, political, religious and social environment. The applicant’s background may impact the way he or she expresses his or her sexual orientation and/or gender identity, or may explain the reasons why he or she does not live openly as LGBTI. It is important that decisions on LGBTI refugee claims are not based on superficial understandings of the experiences of LGBTI persons, or on errone‑ous, culturally inappropriate or stereotypical assumptions. These Guidelines provide substantive and procedural guidance on the determination of refugee status of individuals on the basis of their sexual orientation and/or gender identity, with a view to ensuring a proper and harmonized interpretation of the refugee definition in the 1951 Convention.6

II. INTERNATIONAL HUMAN RIGHTS LAW

5. Article 1 of the Universal Declaration of Human Rights provides that “all human beings are born free and equal in dignity and rights”, and Article 2 declares that “everyone is entitled to all the rights and freedoms

1 For a discussion of terms, see below at III. Terminology. For the purpose of these Guidelines, “gender identity” also incorporates “intersex”.2 The 1951 Convention relating to the Status of Refugees was drafted not least as a response to the persecution during World War II, during which intolerance and violence cost the lives of thousands of people with a LGBTI background. See, UNHCR, “Summary Conclusions: Asylum‑Seekers and Refugees Seeking Protection on Account of their Sexual Orientation and Gender Identity”, November 2010, Expert Roundtable organized by UNHCR, Geneva, Switzerland, 30 September–1 October 2010 (hereafter “UNHCR, Summary Conclusions of Roundtable”), available at: http://www.unhcr.org/refworld/docid/4cff99a42.html, para. 3.3 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951; Protocol Relating to the Status of Refugees, 31 January 1967.4 See, UN Human Rights Council, “Report of the United Nations High Commissioner for Human Rights on Discriminatory Laws and Practices and Acts of Violence against Individuals based on their Sexual Orientation and Gender Identity”, 17 November 2011 (hereafter “OHCHR, Report on Sexual Orienta‑tion and Gender Identity”), available at: http://www.unhcr.org/refworld/docid/4ef092022.html. For an overview of jurisprudence and doctrine, see also International Commission of Jurists (hereafter “ICJ”), Sexual Orientation and Gender Identity in Human Rights Law, References to Jurisprudence and Doctrine of the United Nations Human Rights System, 2010, fourth updated edition, available at: http://www.unhcr.org/refworld/docid/4c627bd82.html; ICJ, Sexual Orientation and Gender Identity in Human Rights Law, Jurisprudential, Legislative and Doctrinal References from the Council of Europe and the European Union, October 2007, available at: http://www.unhcr.org/refworld/docid/4a54bbb5d.html; ICJ, Sexual Orientation and Gender Identity in Human Rights Law: References to Jurisprudence and Doctrine of the Inter‑American System, July 2007, available at: http://www.unhcr.org/refworld/docid/4ad5b83a2.html.5 See, International Lesbian, Gay, Bisexual, Trans and Intersex Association, “State‑sponsored Homophobia, A World Survey of Laws Prohibiting Same‑Sex Activity between Consenting Adults”, May 2012, available at: http://old.ilga.org/Statehomophobia/ILGA_State_Sponsored_Homophobia_2012.pdf. 6 These Guidelines supplement the UNHCR “Guidelines on International Protection No. 1: Gender‑Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees”, 7 May 2002 (hereafter “UNHCR, Guidelines on Gender‑Re‑lated Persecution”), available at: http://www.unhcr.org/refworld/docid/3d36f1c64.html

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set forth in this Declaration”.7 All people, including LGBTI individuals, are entitled to enjoy the protec‑tion provided for by international human rights law on the basis of equality and non‑discrimination.8

6. Although the main international human rights treaties do not explicitly recognize a right to equality on the basis of sexual orientation and/or gender identity,9 discrimination on these grounds has been held to be prohibited by international human rights law.10 For example, the proscribed grounds of “sex” and “other status” contained in the non‑discrimination clauses of the main inter‑national human rights instruments have been accepted as encompassing sexual orientation and gender identity.11 As respect for fundamental rights as well as the principle of non‑discrimination are core aspects of the 1951 Convention and international refugee law,12 the refugee definition must be interpreted and applied with due regard to them, including the prohibition on discrimina‑tion on the basis of sexual orientation and gender identity.

7. The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity were adopted in 2007 by a group of human rights experts and, although not binding, reflect well‑established principles of international law.13 They set out the human rights protection framework applicable in the context of sexual orientation and/or gen‑der identity. Principle 23 outlines the right to seek and enjoy asylum from persecution related to sexual orientation and/or gender identity:

Everyone has the right to seek and enjoy in other countries asylum from persecution, including persecution related to sexual orientation or gender identity. A State may not remove, expel or extradite a person to any State where that person may face a well‑founded fear of torture, persecution, or any other form of cruel, inhuman or degrading treatment or punishment, on the basis of sexual orientation or gender identity.

III. TERMINOLOGY

8. These Guidelines are intended to be inclusive of and relevant to the range of claims relating to sexual orientation and/or gender identity. The concepts of sexual orientation and gender identity are outlined in the Yogyakarta Principles and this terminology is also used for the purposes of these Guidelines. Sexual orientation refers to: “each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate relations with, individuals of a different gender or the same gender or more than one gender”.14 Gender identity refers to: “each person’s deeply felt internal and individual expe‑rience of gender, which may or may not correspond with the sex assigned at birth, including the per‑sonal sense of the body and other expressions of gender, including dress, speech and mannerisms”.15

9. Sexual orientation and gender identity are broad concepts which create space for self‑iden‑tification. Research over several decades has demonstrated that sexual orientation can range along a continuum, including exclusive and non‑exclusive attraction to the same or the oppo‑site sex.16 Gender identity and its expression also take many forms, with some individuals iden‑tifying neither as male nor female, or as both. Whether one’s sexual orientation is determined

7 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948.8 OHCHR, Report on Sexual Orientation and Gender Identity, para. 5.9 However, some regional instruments expressly prohibit discrimination on grounds of sexual orientation. See, for example, Charter of Fundamental Rights of the European Union, Article 21, 18 December 2000, and Resolution of the Organization of American States, Human Rights, Sexual Orien‑tation, and Gender Identity, AG/RES. 2721 (XLII‑O/12), 4 June 2012. 10 “[D]iscrimination’ as used in the Covenant [on Civil and Political Rights] should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.”, UN Human Rights Committee, CCPR General Comment No. 18: Non‑Discrimination, 10 November 1989, avail‑able at: http://www.unhcr.org/refworld/docid/453883fa8.html, para. 7. 11 The UN Human Rights Committee held in 1994 in the landmark decision Toonen v. Australia that the International Covenant on Civil and Political Rights (adopted by the UN General Assembly on 16 December 1966, hereafter “ICCPR”) prohibits discrimination on the grounds of sexual orienta‑tion, see CCPR/C/50/D/488/1992, 4 April 1994, (hereafter “Toonen v. Australia”) available at: http://www.unhcr.org/refworld/docid/48298b8d2.html. This has subsequently been affirmed by several other UN human rights treaty bodies, including also recognition that gender identity is among the prohibited grounds of discrimination. See further, OHCHR, Report on Sexual Orientation and Gender Identity, para. 7. 12 1951 Convention, Preambular para. 1, Article 3.13 ICJ, Yogyakarta Principles ‑ Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, (hereafter “Yogyakarta Principles”), March 2007, available at: http://www.unhcr.org/refworld/docid/48244e602.html. 14 Yogyakarta Principles, Preamble.15 Ibid.16 American Psychological Association, “Sexual Orientation and Homosexuality” (hereafter “APA, Sexual Orientation and Homosexuality”), available at: http://www.apa.org/helpcenter/sexual‑orientation.aspx.





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by, inter alia, genetic, hormonal, developmental, social, and/or cultural influences (or a combina‑tion thereof), most people experience little or no sense of choice about their sexual orientation.17 While for most people sexual orientation or gender identity are determined at an early age, for others they may continue to evolve across a person’s lifetime. Different people realize at different points in their lives that they are LGBTI and their sexual and gender expressions may vary with age, and other social and cultural determinants.18

10. Refugee claims based on sexual orientation and/or gender identity often emanate from members of specific sub‑groups, that is, lesbian, gay, bisexual, transgender, intersex and queer19 individuals (usually abbreviated as “LGBT”, “LGBTI” or “LGBTIQ”20). The experiences of members of these various groups will often be distinct from one another; and, as noted above at paragraph 4, between members. It is, therefore, essential that decision makers understand both the context of each refugee claim, as well as individual narratives that do not easily map onto common experiences or labels.21

Lesbian

A lesbian is a woman whose enduring physical, romantic and/or emotional attraction is to other women. Lesbians often suffer multiple discrimination due to their gender, their often inferior social and/or economic status, coupled with their sexual orientation. Lesbians are commonly subjected to harm by non‑State actors, including acts such as “corrective” rape, retaliatory violence by former partners or husbands, forced marriage, and crimes committed in the name of “honour” by family members. Some lesbian refugee applicants have not had any experiences of past persecution; for example, if they have had few or no lesbian relationships. Lesbians may have had heterosexual relationships, often, but not necessarily, because of social pressures to marry and bear children. They may only later in life enter into a lesbian relationship or identify as lesbian. As in all refugee claims, it is important to ensure that the assessment of her fear of persecution is future‑looking and that decisions are not based on stereotypical notions of lesbians.

Gay men

Gay is often used to describe a man whose enduring physical, romantic and/or emotional attraction is to other men, although gay can also be used to describe both gay men and women (lesbians). Gay men numerically dom‑inate sexual orientation and gender identity refugee claims, yet their claims should not be taken as a “template” for other cases on sexual orientation and/or gender identity. Gay men are often more visible than other LGBTI groups in public life in many societies and can become the focus of negative political campaigns. It is important, however, to avoid assumptions that all gay men are public about their sexuality or that all gay men are effemi‑nate. Having defied masculine privilege by adopting roles and characteristics viewed as “feminine”, gay men may be viewed as “traitors”, whether they are effeminate or not. They could be at particular risk of abuse in prisons, the military22 and other traditionally male dominated environments and job sites. Some gay men may also have had heterosexual relationships because of societal pressures, including to marry and/or have children.

Bisexual

Bisexual describes an individual who is physically, romantically and/or emotionally attracted to both men and women. The term bisexuality tends to be interpreted and applied inconsistently, often with a too narrow understanding. Bisexuality does not have to involve attraction to both sexes at the same time, nor does it have to involve equal attraction to or number of relationships with both sexes. Bisexuality is a unique identity, which requires an examination in its own right. In some countries persecution may be directed expressly at gay or lesbian conduct, but nevertheless encompass acts of individuals who identify as bisexual. Bisexuals often describe their sexual orientation as “fluid” or “flexible” (see further below at paragraph 47).

17 There is no consensus among scientists about the exact reasons that an individual develops a particular sexual orientation. See, APA, Sexual Orien‑tation and Homosexuality.18 Application No. 76175, New Zealand Appeals Authority, 30 April 2008, available at: http://www.unhcr.org/refworld/docid/482422f62.html, para. 92.19 Queer is traditionally a pejorative term, however, it has been appropriated by some LGBT people to describe themselves.20 UNHCR has opted to refer to “LGBTI” individuals, which is intended to be inclusive of a wide range of individuals who fear persecution for reasons of their sexual orientation and/or gender identity. See further, UNHCR, Working with Lesbian, Gay, Bisexual, Transgender & Intersex Persons in Forced Displace‑ment, 2011, available at: http://www.unhcr.org/refworld/docid/4e6073972.html. For further information on terminology, see, for example, Gay & Lesbi‑an Alliance Against Defamation, “Media Reference Guide: A Resource for Journalists”, updated May 2010, available at: http://www.glaad.org/reference. 21 Considerations relating to each group are also integrated elsewhere in these Guidelines.22 See, for example, RRT Case No. 060931294, [2006] RRTA 229, Australia, RRTA, 21 December 2006, available at: http://www.unhcr.org/refworld/docid/47a707ebd.html; MS (Risk – Homosexuality – Military Service) Macedonia v. SSHD, CG [2002] UKIAT 03308, UK Immigration and Asylum Tribunal, 30 July 2002, available at: http://www.unhcr.org/refworld/docid/46836aba0.html, which found that the “atrocious prison conditions” in the particular country would breach the appellant’s rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Article 3. Lesbians may also be at risk in these environments. See, Smith v. Minister of Citizenship and Immigration, 2009 FC 1194, Canada, Federal Court, 20 November 2009, available at: http://www.unhcr.org/refworld/docid/4b3c7b8c2.html.



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Transgender

Transgender describes people whose gender identity and/or gender expression differs from the biological sex they were assigned at birth.23 Transgender is a gender identity, not a sexual orientation and a transgender individual may be heterosexual, gay, lesbian or bisexual.24 Transgender individuals dress or act in ways that are often different from what is generally expected by society on the basis of their sex assigned at birth. Also, they may not appear or act in these ways at all times. For example, individuals may choose to express their chosen gender only at certain times in environments where they feel safe. Not fitting within accepted binary perceptions of being male and female, they may be perceived as threatening social norms and values. This non‑conformity exposes them to risk of harm. Transgender individuals are often highly marginalized and their claims may reveal experiences of severe physical, psychological and/or sexual violence. When their self‑identification and physical appearance do not match the legal sex on official documentation and identity documents, transgender people are at particular risk.25 The transition to alter one’s birth sex is not a one‑step process and may involve a range of personal, legal and medical adjustments. Not all transgender individuals choose medical treatment or other steps to help their outward appearance match their internal identity. It is therefore important for decision makers to avoid overemphasis on sex‑reassignment surgery.

Intersex

The term intersex or “disorders of sex development” (DSD)26 refers to a condition in which an individual is born with reproductive or sexual anatomy and/or chromosome patterns that do not seem to fit typical biological notions of being male or female. These conditions may be apparent at birth, may appear at puberty, or may be discovered only during a medical examination. Individuals with these conditions were previously referred to as “hermaphrodites”, however this term is considered outdated and should not be used unless the applicant uses it.27 An intersex person may identify as male or female, while their sexual orientation may be lesbian, gay, bisexual, or heterosexual.28 Intersex persons may be subjected to persecution in ways that relate to their atypical anatomy. They may face discrimination and abuse for having a physical disability or medical condition, or for non‑conformity with expected bodily appearances of females and males. Some intersex children are not registered at birth by the authorities, which can result in a range of associated risks and denial of their human rights. In some countries, being intersex can be seen as something evil or part of witchcraft and can result in a whole family being targeted for abuse.29 Similar to transgender individuals, they may risk being harmed during the transition to their chosen gender because, for example, their identification papers do not indicate their cho‑sen gender. People who self‑identify as intersex may be viewed by others as transgender, as there may simply be no understanding of the intersex condition in a given culture.

11. Not all applicants will self‑identify with the LGBTI terminology and constructs as presented above or may be unaware of these labels. Some may only be able to draw upon (derogatory) terms used by the persecutor. Decision makers therefore need to be cautious about inflexibly applying such labels as this could lead to adverse credibility assessments or failure to recognize a valid claim. For example, bisexuals are often categorized in the adjudication of refugee claims as either gay, lesbian or heterosexual, intersex individuals may not identify as LGBTI at all (they may not see their condition as part of their identity, for example) and men who have sex with men do not always identify as gay. It is also important to be clear about the distinction between sexual orientation and gender identity. They are separate concepts and, as explained above at paragraph8, they present different aspects of the identity of each person. 23 The term may include, but is not limited to, transsexuals (an older term which originated in the medical and psychological communities), cross‑dressers and other gender‑variant people. See further, APA, “Answers to Your Questions about Transgender People, Gender Identity and Gender Expression”, available at: http://www.apa.org/topics/sexuality/transgender.aspx.24 See also, RRT Case No. 0903346, [2010] RRTA 41, Australia, Refugee Review Tribunal, 5 February 2010, (hereafter “RRT Case No. 0903346”) available at: http://www.unhcr.org/refworld/docid/4b8e783f2.html, which concerned a transgender applicant who feared persecution because of her gender identity.25 The European Court of Human Rights has established that authorities must legally recognize the altered gender. See, Goodwin v. United Kingdom, Ap‑plication no. 28957/95, European Court of Human Rights, 11 July 2002, available at: http://www.unhcr.org/refworld/docid/4dad9f762.html, finding a violation of the applicant’s right to privacy, noting that “the stress and alienation arising from a discordance between the position in society assumed by a post‑operative transsexual and the status imposed by law which refuses to recognize the change of gender cannot, in the Court’s view, be regarded as a minor inconvenience arising from a formality.”, para. 77, and that “Under Article 8 of the Convention in particular, the notion of personal autonomy is an important principle underlying the interpretation of its guarantees, protection is given to the personal sphere of each individual, including the right to establish details of their identity as individual human beings”, para. 90. See also Council of Europe Recommendation CM/Rec (2010)5 of the Committee of Ministers to Member States on measures to combat discrimination on grounds of sexual orientation or gender identity, recognizing that “Member states should take appropriate measures to guarantee the full legal recognition of a person’s gender reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent and accessible way.”, at 21.26 Note that some individuals (and/or their medical records) will just use the name of their particular condition, such as congenital adrenal hyperplasia or androgen insensitivity syndrome, rather than using the term intersex or DSD.27 US Citizenship and Immigration Services, “Guidance for Adjudicating Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Refugee and Asylum Claims”, 27 December 2011 (hereafter “USCIS, Guidance for Adjudicating LGBTI Claims”), available at: http://www.unhcr.org/refworld/docid/4f269cd72.html, p. 13. 28 See further, Advocates for Informed Choice website: http://aiclegal.org/faq/#whatisintersex.29 Jill Schnoebelen, Witchcraft Allegations, Refugee Protection and Human Rights: A Review of the Evidence, UNHCR, New Issues in Refugee Research, Research Paper No. 169, January 2009, available at: http://www.unhcr.org/4981ca712.pdf.

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IV. SUBSTANTIVE ANALYSIS

A. Background

12. A proper analysis as to whether a LGBTI applicant is a refugee under the 1951 Convention needs to start from the premise that applicants are entitled to live in society as who they are and need not hide that.30 As affirmed by the position adopted in a number of jurisdictions, sexual orientation and/or gender identity are fundamental aspects of human identity that are either innate or immutable, or that a person should not be required to give up or conceal.31 While one’s sexual orientation and/or gender identity may be revealed by sexual conduct or a sexual act, or by external appearance or dress, it may also be evidenced by a range of other factors, including how the applicant lives in society, or how he or she expresses (or wishes to express) his or her identity.32

13. An applicant’s sexual orientation and/or gender identity can be relevant to a refugee claim where he or she fears persecutory harm on account of his or her actual or perceived sexual orientation and/or gender identity, which does not, or is seen not to, conform to prevailing political, cultural or social norms. The intersection of gender, sexual orientation and gender identity is an integral part in the as‑sessment of claims raising questions of sexual orientation and/or gender identity. Harm as a result of not conforming to expected gender roles is often a central element in these claims. UNHCR’s Guide‑lines on Gender‑Related Persecution recognize that:

Refugee claims based on differing sexual orientation contain a gender element. A claimant’s sexuality or sex‑ual practices may be relevant to a refugee claim where he or she has been subject to persecutory action on account of his or her sexuality or sexual practices. In many such cases, the claimant has refused to adhere to socially or culturally defined roles or expectations of behaviour attributed to his or her sex.33

14. The impact of gender is relevant to refugee claims made by both LGBTI men and women.34 De‑cision makers need to be attentive to differences in their experiences based on sex/gender. For ex‑ample, heterosexual or male gay norms or country information may not apply to the experiences of lesbians whose position may, in a given context, be similar to that of other women in her society. Full account needs to be taken of diverse and evolving identities and their expression, the actual circum‑stances of the individual, and the cultural, legal, political and social context.35

15. Societal disapproval of varied sexual identities or their expression is usually more than the simple disapproval of sexual practices. It is often underlined by a reaction to non‑compliance with expected cultural, gender and/or social norms and values. The societal norms of who men and wom‑en are and how they are supposed to behave are commonly based on hetero‑normative standards. Both men and women may be subject to violent acts to make them conform to society’s gender roles and/or to intimidate others by setting “an example”. Such harm can be “sexualized” as a means of further degrading, objectifying or punishing the victim for his/her sexual orientation and/or gen‑der identity, but can also take other forms.36

30 UNHCR, HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department – Case for the First Intervener (United Nations High Commissioner for Refugees), 19 April 2010, (hereafter “UNHCR, HJ and HT”), available at: http://www.unhcr.org/refworld/docid/4bd1abbc2.html, para. 1. For a comparison with other Convention grounds, see para. 29 of the submission. See also, HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department, UK, [2010] UKSC 31, Supreme Court, 7 July 2010 (hereafter “HJ and HT”), available at: http://www.unhcr.org/refworld/docid/4c3456752.html.31 See, for example, Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, Canada, Supreme Court, 30 June 1993 (hereafter “Canada v. Ward”), available at: http://www.unhcr.org/refworld/docid/3ae6b673c.html; Geovanni Hernandez‑Montiel v. Immigration and Naturalization Service, US, 225 F.3d 1084, A72‑994‑275, (9th Cir. 2000), 24 August 2000, available at: http://www.unhcr.org/refworld/docid/3ba9c1119.html, later affirmed by Morales v. Gonzales, US, 478 F.3d 972, No. 05‑70672, (9th Cir. 2007), 3 January 2007, available at: http://www.unhcr.org/refworld/docid/4829b1452.html; Appellants S395/2002 and S396/2002 v. Minister for Immigration and Multicultural Affairs, [2003] HCA 71, Australia, High Court, 9 December 2003 (hereafter “S395/2002”), available at: http://www.unhcr.org/refworld/docid/3fd9eca84.html; Refugee Appeal No. 74665, New Zealand, Refugee Status Appeals Authority, 7 July 2004 (hereafter “Refugee Appeal No. 74665”), available at: http://www.unhcr.org/refworld/docid/42234ca54.html; HJ and HT, above footnote 30, paras. 11, 14, 78. 32 Yogyakarta Principles, Principle 3, affirms that each person’s self‑defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self‑determination, dignity and freedom. See further, S395/2002, para. 81; Matter of Toboso‑Alfonso, US Board of Immigration Appeals, 12 March 1990, (hereafter “Matter of Toboso‑Alfonso”), available at: http://www.unhcr.org/refworld/docid/3ae6b6b84.html; Nasser Mustapha Karouni v. Alberto Gonzales, Attorney General, US, No. 02‑72651, (9th Cir. 2005), 7 March 2005 (hereafter “Karouni”) available at: http://www.unhcr.org/refworld/docid/4721b5c32.html, at III[6]; Lawrence, et al. v. Texas, US Supreme Court, 26 June 2003, available at: http://www.unhcr.org/refworld/docid/3f21381d4.html, which found that “When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring”, p. 6. 33 UNHCR, Guidelines on Gender‑Related Persecution, para. 16.34 UNHCR, Guidelines on Gender‑Related Persecution, para. 3.35 UNHCR, Summary Conclusions of Roundtable, para. 5.36 UNHCR, Summary Conclusions of Roundtable, paras. 6, 16.

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B. Well‑founded fear of being persecuted

16. The term “persecution”, though not expressly defined in the 1951 Convention, can be consid‑ered to involve serious human rights violations, including a threat to life or freedom as well as other kinds of serious harm. In addition, lesser forms of harm may cumulatively constitute persecution. What amounts to persecution will depend on the circumstances of the case, including the age, gender, opinions, feelings and psychological make‑up of the applicant.37

17. Discrimination is a common element in the experiences of many LGBTI individuals. As in other refugee claims, discrimination will amount to persecution where measures of discrimination, individ‑ually or cumulatively, lead to consequences of a substantially prejudicial nature for the person con‑cerned.38 Assessing whether the cumulative effect of such discrimination rises to the level of perse‑cution is to be made by reference to reliable, relevant and up‑to‑date country of origin information.39

18. Not all LGBTI applicants may have experienced persecution in the past (see further below at paragraphs 30‑33 on concealment as persecution and at paragraph 57 on sur place claims). Past per‑secution is not a prerequisite to refugee status and in fact, the well‑foundedness of the fear of per‑secution is to be based on the assessment of the predicament that the applicant would have to face if returned to the country of origin.40 The applicant does not need to show that the authorities knew about his or her sexual orientation and/or gender identity before he or she left the country of origin.41

19. Behaviour and activities may relate to a person’s orientation or identity in complex ways. It may be expressed or revealed in many subtle or obvious ways, through appearance, speech, behaviour, dress and mannerisms; or not revealed at all in these ways. While a certain activity expressing or revealing a person’s sexual orientation and/or gender identity may sometimes be considered trivial, what is at issue is the consequences that would follow such behaviour. In other words, an activity associated with sexual orientation may merely reveal or expose the stigmatized identity, it does not cause or form the basis of the persecution. In UNHCR’s view, the distinction between forms of expression that relate to a “core area” of sexual orientation and those that do not, is therefore irrel‑evant for the purposes of the assessment of the existence of a well‑founded fear of persecution.42

Persecution

20. Threats of serious abuse and violence are common in LGBTI claims. Physical, psychological and sexual violence, including rape,43 would generally meet the threshold level required to establish persecution. Rape in particular has been recognized as a form of torture, leaving “deep psycholog‑ical scars on the victim”.44 Rape has been identified as being used for such purposes as “intimida‑

37 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, HCR/1P/4/ENG/REV. 3 (hereafter “UNHCR, Handbook”), paras. 51–53.38 Ibid, paras. 54–55. 39 Molnar v. Canada (Minister of Citizenship and Immigration), 2005 FC 98, Canada, Federal Court, 21 January 2005 (hereafter “Molnar v. Canada”) available at: http://www.unhcr.org/refworld/docid/4fe81df72.html. 40 See, for example, Bromfield v. Mukasey, US, 543 F.3d 1071, 1076‑77 (9th Cir. 2008), 15 September 2008, available at: http://www.unhcr.org/ref‑world/docid/498b08a12.html, RRT Case No. 1102877, [2012] RRTA 101, Australia, Refugee Review Tribunal, 23 February 2012, available at: http://www.unhcr.org/refworld/docid/4f8410a52.html, para. 91.41 UNHCR, Handbook, para. 83.42 Bundesrepublik Deutschland v. Y (C‑71/11), Z (C‑99/11), C‑71/11 and C‑99/11, CJEU, 5 September 2012, available at: http://www.unhcr.org/refworld/docid/505ace862.html, para. 62; RT (Zimbabwe) and others v Secretary of State for the Home Department, [2012] UKSC 38, UK Supreme Court, 25 July 2012, available at: http://www.unhcr.org/refworld/docid/500fdacb2.html, paras. 75–76 (Lord Kerr); UNHCR Statement on Religious Persecution and the Interpretation of Article 9(1) of the EU Qualification Directive and UNHCR, Secretary of State for the Home Department (Appellant) v. RT (Zimbabwe), SM (Zimbabwe) and AM (Zimbabwe) (Respondents) and the United Nations High Commissioner for Refugees (Intervener) – Case for the Intervener, 25 May 2012, Case No. 2011/0011, available at: http://www.unhcr.org/refworld/docid/4fc369022.html, para. 12(9).43 International criminal tribunals in their jurisprudence have broadened the scope of crimes of sexual violence that can be prosecuted as rape to include oral sex and vaginal or anal penetration through the use of objects or any part of the perpetrator’s body. See, for instance, Prosecutor v. Anto Furundzija (Trial Judgment), IT‑95‑17/1‑T, International Criminal Tribunal for the Former Yugoslavia (ICTY), 10 December 1998, available at: http://www.unhcr.org/refworld/docid/40276a8a4.html, para. 185; Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Appeal Judgment), IT‑96‑23 & IT‑96‑23/1‑A, ICTY, 12 June 2002, available at: http://www.unhcr.org/refworld/docid/3debaafe4.html, para. 128. See also, International Criminal Court, Elements of Crimes, 2011, available at: http://www.unhcr.org/refworld/docid/4ff5dd7d2.html, Articles 7 (1) (g)‑1 and 8(2)(b)(xxii)‑1. For refugee‑related jurisprudence, see Ayala v. US Attorney General, US, No. 09‑12113, (11th Cir. 2010), 7 May 2010 (hereafter “Ayala v. US Attorney General”), available at: http://www.unhcr.org/refworld/docid/4c6c04942.html, which found that oral rape constituted persecution. 44 Aydin v. Turkey, 57/1996/676/866, Council of Europe, European Court of Human Rights, 25 September 1997, available at: http://www.unhcr.org/refworld/docid/3ae6b7228.html, para. 83. See also, HS (Homosexuals: Minors, Risk on Return) Iran v. Secretary of State for the Home Department [2005] UKAIT 00120, UK Asylum and Immigration Tribunal (AIT), 4 August 2005, available at http://www.unhcr.org/refworld/docid/47fdfafe0.html, recognizing as torture the sexual assault the applicant had been subjected to while in detention, paras. 57, 134; Arrêt n° 36 527, Belgium: Conseil du Contentieux des Etrangers, 22 December 2009, available at: http://www.unhcr.org/refworld/docid/4dad94692.html, referring to torture and serious violations of the appellant’s physical integrity while in prison as constituting persecution.

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tion, degradation, humiliation, discrimination, punishment, control or destruction of the person. Like torture, rape is a violation of personal dignity.”45

21. Many societies, for example, continue to view homosexuality, bisexuality, and/or transgender behaviour or persons, as variously reflecting a disease, a mental illness or moral failing, and they may thus deploy various measures to try to change or alter someone’s sexual orientation and/or gender identity. Efforts to change an individual’s sexual orientation or gender identity by force or coercion may constitute torture, or inhuman or degrading treatment, and implicate other serious human rights violations, including the rights to liberty and security of person. Examples at the ex‑treme end and which on their face reach the threshold of persecution include forced institution‑alization, forced sex‑reassignment surgery, forced electroshock therapy and forced drug injection or hormonal therapy.46 Non‑consensual medical and scientific experimentation is also explicitly identified as a form of torture or inhuman or degrading treatment under the International Cove‑nant on Civil and Political Rights.47 Some intersex individuals may be forced to undergo surgery aimed at “normalcy” and, where it will be applied without their consent, this is likely to amount to persecution. It is also important to distinguish in these cases between surgery necessary to pre‑serve life or health and surgery for cosmetic purposes or social conformity. The assessment needs to focus on whether the surgery or treatment was voluntary and took place with the informed consent of the individual.48

22. Detention, including in psychological or medical institutions, on the sole basis of sexual orienta‑tion and/or gender identity is considered in breach of the international prohibition against the arbi‑trary deprivation of liberty and would normally constitute persecution.49 Moreover, as noted by the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, there is usually a strict hierarchy in detention facilities and those at the bottom of this hierarchy, such as LGBTI detainees, suffer multiple discrimination. Male‑to‑female transgender prisoners are at particular risk of physical and sexual abuse if placed within the general male prison population.50 Administrative segregation, or solitary confinement, solely because a person is LGBTI can also result in severe psychological harm.51

23. Social norms and values, including so‑called family “honour”, are usually closely intertwined in the refugee claims of LGBTI individuals. While “mere” disapproval from family or community will not amount to persecution, it may be an important factor in the overall context of the claim. Where family or community disapproval, for example, manifests itself in threats of serious physical violence or even murder by family members or the wider community, committed in the name of “honour”, it would clearly be classed as persecution.52 Other forms of persecution include forced or underage marriage,

45 The Prosecutor v. Jean‑Paul Akayesu (Trial Judgment), ICTR‑96‑4‑T, International Criminal Tribunal for Rwanda, 2 September 1998, available at: http://www.unhcr.org/refworld/docid/40278fbb4.html, para. 687.46 Yogyakarta Principles, Principle 18: “Notwithstanding any classifications to the contrary, a person’s sexual orientation and gender identity are not, in and of themselves, medical conditions and are not to be treated, cured or suppressed”. See also, Alla Konstantinova Pitcherskaia v. Immigration and Naturalization Service, US, 95‑70887, (9th Cir. 1997), 24 June 1997 (hereafter “Pitcherskaia v. INS”), available at: http://www.unhcr.org/refworld/do‑cid/4152e0fb26.html.47 ICCPR, Article 7, “… In particular, no one shall be subjected without his free consent to medical or scientific experimentation”. As affirmed, for example, by the UN Committee Against Torture and the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, this includes subjecting men suspected of homosexual conduct to non‑consensual anal examinations to prove their homosexuality. See further, OHCHR, Report on Sexual Orientation and Gender Identity, para. 37. 48 See, UN Committee on the Elimination of Discrimination against Women (CEDAW), Communication No. 4/2004, 29 August 2006, CE‑DAW/C/36/D/4/2004, available at: http://www.unhcr.org/refworld/docid/4fdb288e2.html, which considered non‑consensual sterilization as a viola‑tion of women’s rights to informed consent and dignity, para. 11.3. In respect of surgery at birth, the best interests of the child is a primary consideration, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her (Convention on the Rights of the Child (CRC), Article 3). If sex re‑assignment or reconstructive surgery is contemplated only later in childhood, “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child” (CRC, Article 12(1)). 49 See, UN Working Group on Arbitrary Detention, Opinions No. 22/2006 on Cameroon and No. 42/2008 on Egypt; A/HRC/16/47, annex, para. 8(e). See also, UNHCR, “Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum‑Seekers and Alternatives to Detention”, 2012, (hereafter “UNHCR, Guidelines on Detention”), available at: http://www.unhcr.org/refworld/docid/503489533b8.html. 50 OHCHR, Report on Sexual Orientation and Gender Identity, para. 34.51 As noted in the UNHCR Guidelines on Detention, “solitary confinement is not an appropriate way to manage or ensure the protection of such indi‑viduals”, para. 65.52 UN Human Rights Committee and the Inter‑American Commission on Human Rights have concluded that the inaction of State vis‑à‑vis death threats constitutes a violation of the right to life. See also, RRT Case No. 0902671, [2009] RRTA 1053, Australia, Refugee Review Tribunal, 19 November 2009, available at: http://www.unhcr.org/refworld/docid/4b57016f2.html, which found that the “applicant’s chance of facing serious harm, possibly death by honour killing, if he returned to [the country of origin] now or in the reasonably foreseeable future is real and amounts to serious harm…in that it is deliberate or intentional and involves persecution for a Convention reason”. See also, Muckette v. Minister of Citizenship and Immigration, 2008 FC 1388, Canada, Federal Court, 17 December 2008, available at: http://www.unhcr.org/refworld/docid/4989a27e2.html. The case was remanded for reconsideration as the lower instance had “failed to address whether the death threats had a degree of reality to them and in effect dismissed them because no one had attempted to kill the Applicant.”

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forced pregnancy and/or marital rape (on rape, see above at paragraph 20). In the context of sexual orientation and/or gender identity cases, such forms of persecution are often used as a means of denial or “correcting” non‑conformity. Lesbians, bisexual women and transgender persons are at particular risk of such harms owing to pervasive gender inequalities that restrict autonomy in de‑cision‑making about sexuality, reproduction and family life.53

24. LGBTI individuals may also be unable to enjoy fully their human rights in matters of private and family law, including inheritance, custody, visitation rights for children and pension rights.54 Their rights to freedom of expression, association and assembly may be restricted.55 They may also be denied a range of economic and social rights, including in relation to housing, education,56 and health care.57 Young LGBTI individuals may be prevented from going to school, subjected to harassment and bullying and/or expelled. Community ostracism can have a damaging impact on the mental health of those targeted, especially if such ostracism has lasted for an extended period of time and where it occurs with impunity or disregard. The cumulative effect of such restrictions on the exercise of human rights may constitute persecution in a given case.

25. LGBTI individuals may also experience discrimination in access to and maintenance of em‑ployment.58 Their sexual orientation and/or gender identity may be exposed in the workplace with resulting harassment, demotion or dismissal. For transgender individuals in particular, deprivation of employment, often combined with lack of housing and family support, may frequently force them into sex work, subjecting them to a variety of physical dangers and health risks. While being dismissed from a job generally is not considered persecution, even if discriminatory or unfair, if an individual can demonstrate that his or her LGBTI identity would make it highly improbable to enjoy any kind of gainful employment in the country of origin, this may constitute persecution.59

Laws criminalizing same‑sex relations

26. Many lesbian, gay or bisexual applicants come from countries of origin in which consensual same‑sex relations are criminalized. It is well established that such criminal laws are discriminatory and violate international human rights norms.60 Where persons are at risk of persecution or punish‑ment such as by the death penalty, prison terms, or severe corporal punishment, including flogging, their persecutory character is particularly evident.61

27. Even if irregularly, rarely or ever enforced, criminal laws prohibiting same‑sex relations could lead to an intolerable predicament for an LGB person rising to the level of persecution. Depending on the country context, the criminalization of same‑sex relations can create or contribute to an oppressive atmosphere of intolerance and generate a threat of prosecution for having such relations. The existence of such laws can be used for blackmail and extortion purposes by the authorities or non‑State actors. They can promote political rhetoric that can expose LGB individuals to risks of persecutory harm. They can also hinder LGB persons from seeking and obtaining State protection.

53 OHCHR, Report on Sexual Orientation and Gender Identity, para. 66.54 Ibid, paras. 68–70.55 Ibid, paras. 62–65.56 Ibid, paras. 58–61.57 Ibid, paras. 54–57.58 Ibid, paras. 51–53.59 USCIS, Guidance for Adjudicating LGBTI Claims, p. 23. See also, Kadri v. Mukasey, US, Nos. 06‑2599 & 07‑1754, (1st Cir. 2008), 30 September 2008, available at: http://www.unhcr.org/refworld/docid/498b0a212.html. The case was remanded for consideration of the standard for economic persecution, referring to In re T‑Z‑, 24 I & N. Dec. 163 (US Board of Immigration Appeals, 2007), which had found that “’[nonphysical] harm or suffering . . . such as the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment, or other essentials of life may rise to persecution”.60 See, for example, Toonen v. Australia, above footnote 11, which found that the sodomy law of the territory concerned violated the rights to privacy and equality before the law.61 European Union, European Parliament, Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on stand‑ards for the qualification of third‑country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), (hereafter “EU Qualification Directive”), Article 9; COC and Vrije Universiteit Amsterdam, Fleeing Homophobia, Asylum Claims Related to Sexual Orientation and Gender Identity in Europe, September 2011 (hereafter “Fleeing Homophobia Report”) available at: http://www.unhcr.org/refworld/docid/4ebba7852.html, pp. 22–24. See also Arrêt n° 50 966, Belgium, Conseil du Contentieux des Etrangers, 9 November 2010, available at: http://www.unhcr.org/refworld/docid/4dad967f2.html, concerning a lesbian, found that a prison term for homosexual conduct of 1–5 years and fines from 100 000 à 1 500 000 francs CFA and the fact that society was homophobic were sufficient grounds to constitute persecution in the circumstances of the case, para. 5.7.1. Similarly in Arrêt n° 50 967, Belgium, Conseil du Contentieux des Etrangers, 9 November 2010, available at: http://www.unhcr.org/refworld/docid/4dad97d92.html, concerning a gay man.


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28. Assessing the “well‑founded fear of being persecuted” in such cases needs to be fact‑based, focus‑ing on both the individual and the contextual circumstances of the case. The legal system in the country concerned, including any relevant legislation, its interpretation, application and actual impact on the applicant needs to be examined.62 The “fear” element refers not only to persons to whom such laws have already been applied, but also to individuals who wish to avoid the risk of the application of such laws to them. Where the country of origin information does not establish whether or not, or the extent, that the laws are actually enforced, a pervading and generalized climate of homophobia in the country of origin could be evidence indicative that LGBTI persons are nevertheless being persecuted.

29. Even where consensual same‑sex relations are not criminalized by specific provisions, laws of general application, for example, public morality or public order laws (loitering, for example) may be selectively applied and enforced against LGBTI individuals in a discriminatory manner, making life intolerable for the claimant, and thus amounting to persecution.63

Concealment of sexual orientation and/or gender identity

30. LGBTI individuals frequently keep aspects and sometimes large parts of their lives secret. Many will not have lived openly as LGBTI in their country of origin and some may not have had any intimate relationships. Many suppress their sexual orientation and/or gender identity to avoid the severe con‑sequences of discovery, including the risk of incurring harsh criminal penalties, arbitrary house raids, discrimination, societal disapproval, or family exclusion.

31. That an applicant may be able to avoid persecution by concealing or by being “discreet” about his or her sexual orientation or gender identity, or has done so previously, is not a valid reason to deny refugee status. As affirmed by numerous decisions in multiple jurisdictions, a person cannot be denied refugee status based on a requirement that they change or conceal their identity, opinions or characteristics in order to avoid persecution.64 LGBTI people are as much entitled to freedom of expression and association as others.65

32. With this general principle in mind, the question thus to be considered is what predicament the applicant would face if he or she were returned to the country of origin. This requires a fact‑specific examination of what may happen if the applicant returns to the country of nationality or habitual residence and whether this amounts to persecution. The question is not, could the applicant, by being discreet, live in that country without attracting adverse consequences. It is important to note that even if applicants may so far have managed to avoid harm through concealment, their circum‑stances may change over time and secrecy may not be an option for the entirety of their lifetime. The risk of discovery may also not necessarily be confined to their own conduct. There is almost always the possibility of discovery against the person’s will, for example, by accident, rumours or growing suspicion.66 It is also important to recognize that even if LGBTI individuals conceal their sexual orientation or gender identity they may still be at risk of exposure and related harm for not following expected social norms (for example, getting married and having children, for example). The absence of certain expected activities and behaviour identifies a difference between them and other people and may place them at risk of harm.67 62 UNHCR, Handbook, para. 45.63 RRT Case No. 1102877, [2012] RRTA 101, Australia, Refugee Review Tribunal, 23 February 2012, available at: http://www.unhcr.org/refworld/docid/4f8410a52.html, paras. 89, 96; RRT Case No. 071862642, [2008] RRTA 40, Australia: Refugee Review Tribunal, 19 February 2008, available at: http://www.unhcr.org/refworld/docid/4811a7192.html. 64 For example, HJ and HT, above footnote 30; UNHCR, HJ and HT, above footnote 30, paras. 26–33; S395/2002, above footnote 31; Refugee Appeal No. 74665, above footnote 31; Karouni, above footnote 32; KHO:2012:1, Finland, Supreme Administrative Court, 13 January 2012, available at: http://www.unhcr.org/refworld/docid/4f3cdf7e2.html. See also, UNHCR, “Guidelines on International Protection No. 2: “Membership of a Particular Social Group” Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees”, 7 May 2002, HCR/GIP/02/02 (hereafter “UNHCR, Guidelines on Social Group”), available at: http://www.unhcr.org/refworld/docid/3d36f23f4.html, paras. 6, 12; UNHCR, “Guidelines on International Protection No. 6: Religion‑Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees”, 28 April 2004, HCR/GIP/04/06, (hereafter “UNHCR, Guidelines on Religion”), para. 13; UNHCR, Secretary of State for the Home De‑partment (Appellant) v. RT (Zimbabwe), SM (Zimbabwe) and AM (Zimbabwe) (Respondents) and the United Nations High Commissioner for Refugees (Intervener) ‑ Case for the Intervener, 25 May 2012, 2011/0011, available at: http://www.unhcr.org/refworld/docid/4fc369022.html, para. 9.65 As noted by the UK Supreme Court in HJ and HT, above footnote 30: “The underlying rationale of the Convention is … that people should be able to live freely, without fearing that they may suffer harm of the requisite intensity or duration because they are, say, black, or the descendants of some former dictator, or gay. In the absence of any indication to the contrary, the implication is that they must be free to live openly in this way without fear of persecution. By allowing them to live openly and free from that fear, the receiving state affords them protection which is a surrogate for the protection which their home state should have afforded them”, para. 53. 66 S395/2002, above footnote 31, paras. 56–58.67 SW (lesbians ‑ HJ and HT applied) Jamaica v. Secretary of State for the Home Department, UK, CG [2011] UKUT 00251(IAC), Upper Tribunal (Immigration and Asylum Chamber), 24 June 2011, available at: http://www.unhcr.org/refworld/docid/4e0c3fae2.html.





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33. Being compelled to conceal one’s sexual orientation and/or gender identity may also result in significant psychological and other harms. Discriminatory and disapproving attitudes, norms and val‑ues may have a serious effect on the mental and physical health of LGBTI individuals68 and could in particular cases lead to an intolerable predicament amounting to persecution.69 Feelings of self‑denial, anguish, shame, isolation and even self‑hatred which may accrue in response an inability to be open about one’s sexuality or gender identity are factors to consider, including over the long‑term.


34. There is scope within the refugee definition to recognize persecution emanating from both State and non‑State actors. State persecution may be perpetrated, for example, through the crimi‑nalization of consensual same‑sex conduct and the enforcement of associated laws, or as a result of harm inflicted by officials of the State or those under the control of the State, such as the police or the military. Individual acts of “rogue” officers may still be considered as State persecution, especial‑ly where the officer is a member of the police and other agencies that purport to protect people.70

35. In situations where the threat of harm is from non‑State actors, persecution is established where the State is unable or unwilling to provide protection against such harm. Non‑State actors, including family members, neighbours, or the broader community, may be either directly or indirectly involved in persecutory acts, including intimidation, harassment, domestic violence, or other forms of physical, psychological or sexual violence. In some countries, armed or violent groups, such as paramilitary and rebel groups, as well as criminal gangs and vigilantes, may target LGBTI individuals specifically.71

36. In scenarios involving non‑State agents of persecution, State protection from the claimed fear has to be available and effective.72 State protection would normally neither be considered available nor effective, for instance, where the police fail to respond to requests for protection or the author‑ities refuse to investigate, prosecute or punish (non‑State) perpetrators of violence against LGBTI individuals with due diligence.73 Depending on the situation in the country of origin, laws criminaliz‑ing same‑sex relations are normally a sign that protection of LGB individuals is not available. Where the country of origin maintains such laws, it would be unreasonable to expect that the applicant first seek State protection against harm based on what is, in the view of the law, a criminal act. In such situations, it should be presumed, in the absence of evidence to the contrary, that the country con‑cerned is unable or unwilling to protect the applicant.74 As in other types of claims, a claimant does not need to show that he or she approached the authorities for protection before flight. Rather he or she has to establish that the protection was not or unlikely to be available or effective upon return.

37. Where the legal and socio‑economic situation of LGBTI people is improving in the country of origin, the availability and effectiveness of State protection needs to be carefully assessed based on reliable and up‑to‑date country of origin information. The reforms need to be more than mere‑ly transitional. Where laws criminalizing same‑sex conduct have been repealed or other positive measures have been taken, such reforms may not impact in the immediate or foreseeable future as to how society generally regards people with differing sexual orientation and/or gender iden‑

68 Discrimination of LGBTI individuals has been associated with mental health problems. Studies have shown that internalized negative attitudes towards non‑heterosexuality in LGB individuals was related to difficulties with self‑esteem, depression, psychosocial and psychological distress, physical health, intimacy, social support, relationship quality, and career development. See further, APA, “Practice Guidelines for LGB Clients, Guide‑lines for Psychological Practice with Lesbian, Gay, and Bisexual Clients” (hereafter “APA, Practice Guidelines for LGB Clients”), available at: http://www.apa.org/pi/lgbt/resources/guidelines.aspx?item=3. 69 Pathmakanthan v. Holder, US, 612 F.3d 618, 623 (7th Cir. 2010), available at: http://www.unhcr.org/refworld/docid/4d249efa2.html. 70 See Ayala v. US Attorney General, above footnote 42. The treatment by a group of police officers (robbery and sexual assault) constituted persecu‑tion and was deemed to be on account of the applicant’s sexual orientation. 71 P.S., a/k/a S.J.P., v. Holder, Attorney General, US, No. 09‑3291, Agency No. A99‑473‑409, (3rd Cir. 2010), 22 June 2010, available at: http://www.unhcr.org/refworld/docid/4fbf263f2.html, concerned a gay man who was targeted by a non‑State armed group. See also, RRT Case No. N98/22948, [2000] RRTA 1055, Australia, Refugee Review Tribunal, 2 November 2000, available at: http://www.unhcr.org/refworld/docid/4b7a97fd2.html, which found that the applicant was at risk of persecution at the hands of vigilante groups. The identification of poor gay men as “disposables” put them at risk of “social clean up” operations. 72 UNHCR, Handbook, paras. 97–101; UN Human Rights Committee, General Comment no. 31 [80], The nature of the general legal obligation im‑posed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13, available at: http://www.unhcr.org/refworld/docid/478b26ae2.html, paras. 8, 15–16; CEDAW, General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, 19 October 2010, CEDAW/C/2010/47/GC.2, available at: http://www.unhcr.org/refworld/docid/4d467ea72.html, para. 36.73 See, for example, UK Home Office, “Sexual Orientation Issues in the Asylum Claim”, 6 October 2011, available at: http://www.unhcr.org/refworld/docid/4eb8f0982.html, p. 6. 74 UNHCR, Summary Conclusions of Roundtable, para. 8.

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tity.75 The existence of certain elements, such as anti‑discrimination laws or presence of LGBTI or‑ganizations and events, do not necessarily undermine the well‑foundedness of the applicant’s fear.76 Societal attitudes may not be in line with the law and prejudice may be entrenched, with a continued risk where the authorities fail to enforce protective laws.77 A de facto, not merely de jure, change is required and an analysis of the circumstances of each particular case is essential.

C. The causal link (“for reasons of”)

38. As with other types of refugee claims, the well‑founded fear of persecution must be “for reasons of” one or more of the five grounds contained in the refugee definition in Article 1A(2) of the 1951 Convention. The Convention ground should be a contributing factor to the well‑founded fear of per‑secution, though it need not be the sole, or even dominant, cause.

39. Perpetrators may rationalize the violence they inflict on LGBTI individuals by reference to the intention of “correcting”, “curing” or “treating” the person.78 The intent or motive of the persecutor can be a relevant factor to establishing the “causal link” but it is not a prerequisite.79 There is no need for the persecutor to have a punitive intent to establish the causal link.80 The focus is on the reasons for the applicant’s feared predicament within the overall context of the case, and how he or she would experience the harm rather than on the mind‑set of the perpetrator. Nonetheless, where it can be shown that the persecutor attributes or imputes a Convention ground to the applicant, this is sufficient to satisfy the causal link.81 Where the persecutor is a non‑State actor, the causal link may be established either where the non‑State actor is likely to harm the LGBTI person for a Convention reason or the State is not likely to protect him or her for a Convention reason.82

D. Convention grounds

40. The five Convention grounds, that is, race, religion, nationality, membership of a particular social group and political opinion, are not mutually exclusive and may overlap. More than one Convention ground may be relevant in a given case. Refugee claims based on sexual orientation and/or gender identity are most commonly recognized under the “membership of a particular social group” ground. Other grounds may though also be relevant depending on the political, religious and cultural context of the claim. For example, LGBTI activists and human rights defenders (or perceived activists/defend‑ers) may have either or both claims based on political opinion or religion if, for example, their advocacy is seen as going against prevailing political or religious views and/or practices.

41. Individuals may be subject to persecution due to their actual or perceived sexual orientation or gender identity. The opinion, belief or membership may be attributed to the applicant by the State or the non‑State agent of persecution, even if they are not in fact LGBTI, and based on this perception they may be persecuted as a consequence. For example, women and men who do not fit stereotyped appearances and roles may be perceived as LGBTI. It is not required that they actually be LGBTI.83

75 RRT Case No. 0905785, [2010] RRTA 150, Australia, Refugee Review Tribunal, 7 March 2010, available at: http://www.unhcr.org/refworld/do‑cid/4c220be62.html, found that the decriminalization of homosexual acts in the particular country was unlikely to have an immediate impact on how people viewed homosexuality, para. 88.76 USCIS, Guidance for Adjudicating LGBTI Claims, p. 25. See also Guerrero v. Canada (Minister of Citizenship and Immigration), 2011 FC 860, Canada, Fed‑eral Court, 8 July 2011, available at: http://www.unhcr.org/refworld/docid/4fa952572.html, which noted that the presence of many non‑governmental organizations that fight against discrimination based on sexual orientation is in itself a telling factor in considering the country conditions. 77 See, Judgment No. 616907, K, France, Cour nationale du droit d’asile, 6 April 2009, summary available at Contentieux des réfugiés: Jurisprudence du Conseil d’État et de la Cour nationale du droit d’asile – Année 2009, 26 October 2010, available at: http://www.unhcr.org/refworld/docid/4dad9db02.html, pp. 61–62, which recognized as a refugee a gay man from a particular territory based on the fact that even though a 2004 law banned all discrimination on the basis of sexual orientation those showing their homosexuality in public were regularly subject to harassment and discrimination without being able to avail themselves of the protection of the authorities. 78 Yogyakarta Principles, Principle 18.79 UNHCR, Handbook, para. 66.80 Pitcherskaia v. INS, above footnote 45, found that the requirement on the applicant to prove the punitive intent of the perpetrator was unwarranted. 81 UNHCR, “Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees”, April 2001, available at: http://www.unhcr.org/refworld/docid/3b20a3914.html, para. 19. 82 UNHCR, Guidelines on Social Group, para. 23. 83 UNHCR, Guidelines on Gender‑Related Persecution, para. 32; UNHCR, Advisory Opinion by UNHCR to the Tokyo Bar Association Regarding Refugee Claims Based on Sexual Orientation, 3 September 2004, available at; http://www.unhcr.org/refworld/docid/4551c0d04.html, para. 5. See also, Kwasi Amanfi v. John Ashcroft, Attorney General, US, Nos. 01‑4477 and 02‑1541, (3rd Cir. 2003), 16 May 2003, available at: http://www.unhcr.org/refworld/docid/47fdfb2c1a.html, which concerned an applicant who claimed persecution on account of imputed homosexuality.

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Transgender individuals often experience harm based on imputed sexual orientation. Partners of transgender individuals may be perceived as gay or lesbian or simply as not conforming to accepted gender roles and behaviour or associating themselves with transgender individuals.

Religion

38. Where an individual is viewed as not conforming to the teachings of a particular religion on account of his or her sexual orientation or gender identity, and is subjected to serious harm or punishment as a consequence, he or she may have a well‑founded fear of persecution for reasons of religion.84 The teachings of the world’s major religions on sexual orientation and/or gender iden‑tity differ and some have also changed over time or in particular contexts, ranging from outright condemnation, including viewing homosexuality as an “abomination”, “sin”, “disorder” or apostasy, to complete acceptance of diverse sexual orientation and/or gender identity. Non‑LGBTI persons may also be subject to persecution for reasons of religion, for example, where they are (wrongly) perceived as LGBTI or where they support or are seen to support them or their rights.

43. Negative attitudes held by religious groups and communities towards LGBTI individuals can be given expression in a range of ways, from discouraging same‑sex activity, or transgender behaviour or expression of identity, among adherents to active opposition, including protests, beatings, nam‑ing/shaming and “excommunication”, or even execution. The religion and political opinion grounds may overlap where religious and State institutions are not clearly separated.85 Religious organiza‑tions may impute opposition to their teachings or governance by LGBTI individuals, whether or not this is the case. LGBTI applicants may continue to profess adherence to a faith in which they have been subject to harm or a threat of harm.

Membership of a Particular Social Group

44. The 1951 Convention includes no specific list of particular social groups. Rather, “the term membership of a particular social group should be read in an evolutionary manner, open to the diverse and changing nature of groups in various societies and evolving international human rights norms.”86 UNHCR defines a particular social group as:

a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.87

45. The two approaches – “protected characteristics” and “social perception” ‑ to identifying “particular social groups” reflected in this definition are alternative, not cumulative tests. The “protected characteris‑tics” approach examines whether a group is united either by an innate or immutable characteristic or by a characteristic that is so fundamental to human dignity that a person should not be compelled to forsake it. The “social perception” approach, on the other hand, examines whether a particular social group shares a common characteristic which makes it cognizable or sets the group’s members apart from society at large.

46. Whether applying the “protected characteristics” or “social perception” approach, there is broad acknowledgment that under a correct application of either of these approaches, lesbians,88 gay men,89 bisexuals90 and transgender persons91 are members of “particular social groups” within

84 UNHCR, Guidelines on Gender‑Related Persecution, para. 25. See by analogy, In Re S‑A, Interim Decision No. 3433, US Board of Immigration Appeals, 27 June 2000, available at: http://www.unhcr.org/refworld/docid/3ae6b6f224.html.85 UNHCR, Guidelines on Gender‑Related Persecution, para. 26.86 UNHCR, Guidelines on Social Group, para. 3. 87 UNHCR, Guidelines on Social Group, para. 11. Emphasis added.88 See, for example, Pitcherskaia v. INS, above footnote 45; Decisions VA0‑01624 and VA0‑01625 (In Camera), Canada, Immigration and Refugee Board, 14 May 2001, available at: http://www.unhcr.org/refworld/docid/48246f092.html; Islam (A.P.) v. Secretary of State for the Home Department; R v. Immigration Appeal Tribunal and Another, Ex Parte Shah (A.P.), UK House of Lords (Judicial Committee), 25 March 1999, available at: http://www.unhcr.org/refworld/docid/3dec8abe4.html, pp. 8–10. 89 See, for example. Matter of Toboso‑Alfonso, above footnote 32; Refugee Appeal No. 1312/93, Re GJ, New Zealand, Refugee Status Appeals Author‑ity, 30 August 1995, available at: http://www.unhcr.org/refworld/docid/3ae6b6938.html.90 See, for example, VRAW v. Minister for Immigration and Multicultural and Indigenous Affairs, [2004] FCA 1133, Australia, Federal Court, 3 September 2004, available at: http://www.unhcr.org/refworld/docid/4dada05c2.html; Decision T98‑04159, Immigration and Refugee Board of Canada, 13 March 2000, available at: http://www.unhcr.org/refworld/docid/4dada1672.html.91 See, for example, RRT Case No. 0903346, above footnote 24; CE, SSR, 23 juin 1997, 171858, Ourbih, 171858, France, Conseil d’Etat, 23 June 1997, available at: http://www.unhcr.org/refworld/docid/3ae6b67c14.html.



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the meaning of the refugee definition.92 Relatively fewer claims have been made by intersex appli‑cants, but they would also on their face qualify under either approach.

47. Sexual orientation and/or gender identity are considered as innate and immutable characteristics or as characteristics so fundamental to human dignity that the person should not be compelled to forsake them. Where the identity of the applicant is still evolving, they may describe their sexual orientation and/or gender identity as fluid or they may express confusion or uncertainty about their sexuality and/or identity. In both situations, these characteristics are in any event to be considered as fundamental to their evolving identity and rightly within the social group ground.

48. There is no requirement that members of the social group associate with one another, or that they are socially visible, for the purposes of the refugee definition. “Social perception” does not mean to suggest a sense of community or group identification as might exist for members of an organization or association. Thus, members of a social group may not be recognizable even to each other.93

49. Decision makers should avoid reliance on stereotypes or assumptions, including visible markers, or a lack thereof. This can be misleading in establishing an applicant’s membership of a particular social group. Not all LGBTI individuals look or behave according to stereotypical notions. In addition, although an attribute or characteristic expressed visibly may reinforce a finding that an applicant belongs to an LGBTI social group, it is not a pre‑condition for recognition of the group.94 In fact, a group of individuals may seek to avoid manifesting their characteristics in society precisely to avoid persecution (see above paragraphs30‑33).95 The “social perception” approach requires neither that the common attribute be literally visible to the naked eye nor that the attribute be easily identifiable by the general public.96 It is furthermore not necessary that particular members of the group or their common characteristics be publicly known in a society. The determination rests simply on whether a group is “cognizable” or “set apart from society” in a more general, abstract sense.

Political Opinion

50. The term political opinion should be broadly interpreted to incorporate any opinion on any matter in which the machinery of State, society, or policy may be engaged.97 It may include an opinion as to gender roles expected in the family or as regards education, work or other aspects of life.98 The expression of diverse sexual orientation and gender identity can be considered po‑litical in certain circumstances, particularly in countries where such non‑conformity is viewed as challenging government policy or where it is perceived as threatening prevailing social norms and values. Anti‑LGBTI statements could be part of a State’s official rhetoric, for example, denying the existence of homosexuality in the country or claiming that gay men and lesbians are not consid‑ered part of the national identity.

E. INTERNAL FLIGHT OR RELOCATION ALTERNATIVE

51. The concept of an internal flight or relocation alternative (IFA) refers to whether it is possible for an individual to be relocated to a specific area of the country where the risk of feared persecution would not be well‑founded and where, given the particular circumstances of the case, the individual could reasonably be expected to establish him or herself and live a normal life.99 Protection would

92 Sexual orientation and/or gender identity has been explicitly included in the refugee definition in some regional and domestic legislation. For instance, the European Union has adopted a definition of particular social group, recognizing that “depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation”, EU Qualification Directive, Article 10.93 UNHCR, Guidelines on Social Group, paras. 15–16. 94 Judgment No. 634565/08015025, C, France, Cour nationale du droit d’asile, 7 July 2009, summary available at Contentieux des réfugiés: Jurisprudence du Conseil d’État et de la Cour nationale du droit d’asile ‑ Année 2009, 26 October 2010, available at: http://www.unhcr.org/refworld/docid/4dad9db02.html, pp. 58–59, recognizing as a refugee a gay man who had neither claimed nor manifested his homosexuality openly.95 UNHCR, HJ and HT, above footnote 30, para. 26.96 See, for example, UNHCR, Valdiviezo‑Galdamez v. Holder, Attorney General. Brief of the United Nations High Commissioner for Refugees as Amicus Curiae in Support of the Petitioner, 14 April 2009, available at: http://www.unhcr.org/refworld/docid/49ef25102.html; Gatimi et al. v. Holder, Attorney General, No. 08‑3197, United States Court of Appeals for the Seventh Circuit, 20 August 2009, available at: http://www.unhcr.org/refworld/docid/4aba40332.html. 97 Canada v. Ward, above footnote 31. 98 UNHCR, Guidelines on Gender‑Related Persecution, para. 32.99 See UNHCR, “Guidelines on International Protection No. 4: ‘Internal Flight or Relocation Alternative’ Within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees”, 23 July 2003, HCR/GIP/03/04 (hereafter “UNHCR, Guidelines on Internal Flight Alternative”), para. 6.




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need to be available in a genuine and meaningful way. United Nations agencies, non‑governmental organizations, civil society and other non‑State actors are not a substitute for State protection.

52. Within the context of the holistic assessment of a claim for refugee status, the assessment of whether or not there is an IFA requires two main analyses: (i) the relevance analysis100 and (ii) the reasonableness analysis.101 In considering the relevance and reasonableness of a proposed site of internal flight or relocation, gender considerations must be taken into account.

53. In respect of the relevance analysis, if the country in question criminalizes same‑sex relations and enforces the relevant legislation, it will normally be assumed that such laws are applicable in the entire territory. Where the fear of persecution is related to these laws, a consideration of IFA would not be relevant. Laws which do not allow a transgender or intersex individual to access and receive appropriate medical treatment if sought, or to change the gender markers on his or her documents, would also normally be applicable nationwide and should be taken into account when considering the proposed place of relocation.

54. Furthermore, intolerance towards LGBTI individuals tends to exist countrywide in many situ‑ations, and therefore an internal flight alternative will often not be available. Relocation is not a relevant alternative if it were to expose the applicant to the original or any new forms of perse‑cution. IFA should not be relied upon where relocation involves (re‑)concealment of one’s sexual orientation and/or gender identity to be safe (see paragraphs 30‑33).102

55. Some countries have seen social and political progress which is sometimes localized in ur‑ban areas and these locations may in certain circumstances constitute a relocation alternative. In this context, it is important to recall that the decision maker bears the burden of proof of establishing that an analysis of relocation is relevant to the particular case, including identifying the proposed place of relocation and collecting country of origin information about it (see fur‑ther below at paragraph 66).103

56. In determining whether internal flight is reasonable, the decision maker needs to assess wheth‑er return to the proposed place of relocation would cause undue hardship, including by examining the applicant’s personal circumstances;104 the existence of past persecution; safety and security; respect for human rights; and possibility for economic survival.105 The applicant needs to be able to access a minimum level of political, civil and socio‑economic rights. Women may have lesser economic opportunities than men, or may be unable to live separately from male family members, and this should be evaluated in the overall context of the case.106

F. SUR PLACE CLAIMS

57. A sur place claim arises after arrival in the country of asylum, either as a result of the applicant’s activities in the country of asylum or as a consequence of events, which have occurred or are oc‑curring in the applicant’s country of origin since their departure.107 Sur place claims may also arise due to changes in the personal identity or gender expression of the applicant after his or her arrival in the country of asylum. It should be noted that some LGBTI applicants may not have identified themselves as LGBTI before the arrival to the country of asylum or may have consciously decided not to act on their sexual orientation or gender identity in their country of origin. Their fear of

100 The elements to be examined under this analysis are the following: Is the area of relocation practically, safely and legally accessible to the indi‑vidual? Is the agent of persecution a State or non‑State agent? Would the claimant be exposed to a risk of being persecuted or other serious harm upon relocation?101 The criterion to be examined under this analysis is: Can the claimant lead a relatively normal life without facing undue hardship?102 See, for example, Okoli v. Canada (Minister of Citizenship and Immigration), 2009 FC 332, Canada, Federal Court, 31 March 2009, available at: http://www.unhcr.org/refworld/docid/4a5b4bfa2.html, which found that the concealment of an immutable characteristic, that is, the applicant’s sexual orientation, was an “impermissible requirement” for the assessment of internal flight alternative, paras. 36–37, 39; HJ and HT, above footnote 30. para. 21.103 UNHCR, Guidelines on Internal Flight Alternative, paras. 33–34.104 Boer‑Sedano v. Gonzales, US, 418 F.3d 1082, (9th Cir. 2005), 12 August 2005, available at: http://www.unhcr.org/refworld/docid/4821a2ba2.html, found that the applicant’s [HIV‑positive] health status would make relocation unreasonable.105 UNHCR, Guidelines on Internal Flight Alternative, paras. 22–30. 106 UNHCR, Guidelines on Gender‑related Persecution. 107 UNHCR, Handbook, paras. 94, 96.

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persecution may thus arise or find expression whilst they are in the country of asylum, giving rise to a refugee claim sur place. Many such claims arise where an LGBTI individual engages in political activism or media work or their sexual orientation is exposed by someone else.

V. PROCEDURAL ISSUES

General

58. LGBTI individuals require a supportive environment throughout the refugee status determination procedure, including pre‑screening so that they can present their claims fully and without fear. A safe environment is equally important during consultations with legal representatives.

59. Discrimination, hatred and violence in all its forms can impact detrimentally on the applicant’s capacity to present a claim. Some may be deeply affected by feelings of shame, internalized homopho‑bia and trauma, and their capacity to present their case may be greatly diminished as a consequence. Where the applicant is in the process of coming to terms with his or her identity or fears openly expressing his or her sexual orientation and gender identity, he or she may be reluctant to identify the true extent of the persecution suffered or feared.108 Adverse judgements should not generally be drawn from someone not having declared their sexual orientation or gender identity at the screening phase or in the early stages of the interview. Due to their often complex nature, claims based on sexual orientation and/or gender identity are generally unsuited to accelerated processing or the application of “safe country of origin” concepts.109

60. In order to ensure that refugee claims relating to sexual orientation and/or gender identity are properly considered during the refugee status determination process, the following measures should be borne in mind:

i. An open and reassuring environment is often crucial to establishing trust between the inter‑viewer and applicant and will assist the disclosure of personal and sensitive information. At the beginning of the interview, the interviewer needs to assure the applicant that all aspects of his or her claim will be treated in confidence.110 Interpreters are also bound by confidentiality.

ii. Interviewers and decision makers need to maintain an objective approach so that they do not reach conclusions based on stereotypical, inaccurate or inappropriate perceptions of LGBTI indi‑viduals. The presence or absence of certain stereotypical behaviours or appearances should not be relied upon to conclude that an applicant possesses or does not possess a given sexual orien‑tation or gender identity.111 There are no universal characteristics or qualities that typify LGBTI individuals any more than heterosexual individuals. Their life experiences can vary greatly even if they are from the same country.

iii. The interviewer and the interpreter must avoid expressing, whether verbally or through body lan‑guage, any judgement about the applicant’s sexual orientation, gender identity, sexual behaviour or relationship pattern. Interviewers and interpreters who are uncomfortable with diversity of sexual orientation and gender identity may inadvertently display distancing or demeaning body language. Self‑awareness and specialized training (see iv.) are therefore critical aspects to a fair status determination.

iv. Specialized training on the particular aspects of LGBTI refugee claims for decision makers, inter‑viewers, interpreters, advocates and legal representatives is crucial.

108 Some LGBTI applicants may, for instance, change their claims during the process by initially stating that their sexual orientation is imputed to them or making a claim on a ground unrelated to their sexual orientation or gender identity, to eventually expressing that they are LGBTI.109 UNHCR, “Statement on the right to an effective remedy in relation to accelerated asylum procedures”, 21 May 2010, available at: http://www.unhcr.org/refworld/docid/4bf67fa12.html, paras. 11–12. 110 UNHCR, Guidelines on Gender‑Related Persecution, paras. 35, 36.iv.111 This issue has been addressed by a number of US Courts: Shahinaj v. Gonzales, 481 F.3d 1027, ( 8th Cir. 2007), 2 April 2007, available at: http://www.unhcr.org/refworld/docid/4821bd462.html; Razkane v. Holder, Attorney General, No. 08‑9519, (10th Cir. 2009), 21 April 2009, available at: http://www.unhcr.org/refworld/docid/4a5c97042.html; Todorovic v. US Attorney General, No. 09‑11652, (11th Cir. 2010), 27 September 2010, available at: http://www.unhcr.org/refworld/docid/4cd968902.html.

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v. The use of vocabulary that is non‑offensive and shows positive disposition towards diversity of sexual orientation and gender identity, particularly in the applicant’s own language, is es‑sential.112 Use of inappropriate terminology can hinder applicants from presenting the actual nature of their fear. The use of offensive terms may be part of the persecution, for example, in acts of bullying or harassment. Even seemingly neutral or scientific terms can have the same effect as pejorative terms. For instance, although widely used, “homosexual” is also considered a derogatory term in some countries.

vi. Specific requests made by applicants in relation to the gender of interviewers or interpreters should be considered favourably. This may assist the applicant to testify as openly as possible about sensitive issues. If the interpreter is from the same country, religion or cultural back‑ground, this may heighten the applicant’s sense of shame and hinder him or her from fully presenting all the relevant aspects of the claim.

vii. Questioning about incidents of sexual violence needs to be conducted with the same sensitiv‑ity as in the case of any other sexual assault victims, whether victims are male or female.113 Re‑spect for the human dignity of the asylum‑seeker should be a guiding principle at all times.114

viii. For claims based on sexual orientation and/or gender identity by women, additional safe‑guards are presented in UNHCR’s Guidelines on Gender‑Related Persecution.115 Women asy‑lum‑seekers should, for instance, be interviewed separately, without the presence of male family members in order to ensure they have an opportunity to present their case.

ix. Specific procedural safeguards apply in the case of child applicants, including processing on a priority basis and the appointment of a qualified guardian as well as a legal representative.116

61. Where an individual seeks asylum in a country where same‑sex relations are criminalized, these laws can impede his or her access to asylum procedures or deter the person from mentioning his or her sexual orientation or gender identity within status determination interviews. In such situations, it may be necessary for UNHCR to become directly involved in the case, including by conducting refugee status determination under its mandate.117

Credibility and Establishing the Applicant’s Sexual Orientation and/or Gender Identity

62. Ascertaining the applicant’s LGBTI background is essentially an issue of credibility. The assess‑ment of credibility in such cases needs to be undertaken in an individualized and sensitive way. Exploring elements around the applicant’s personal perceptions, feelings and experiences of differ‑ence, stigma and shame are usually more likely to help the decision maker ascertain the applicant’s sexual orientation or gender identity, rather than a focus on sexual practices.118

63. Both open‑ended and specific questions that are crafted in a non‑judgemental manner may allow the applicant to explain his or her claim in a non‑confrontational way. Developing a list of questions in preparation of the interview may be helpful, however, it is important to bear in mind that there is no magic formula of questions to ask and no set of “right” answers in response. Useful areas of questioning may include the following:

112 For suggested appropriate terminology, see above at paras. 9–12.113 UNHCR, Guidelines on Gender‑Related Persecution, para. 36 viii, xi.114 UNHCR, “Summary Report, Informal Meeting of Experts on Refugee Claims relating to Sexual Orientation and Gender Identity”, 10 September 2011 (hereafter “UNHCR, Summary Report of Informal Meeting of Experts”), available at: http://www.unhcr.org/refworld/docid/4fa910f92.html, para. 34.115 UNHCR, Guidelines on Gender‑Related Persecution paras. 35–37.116 UNHCR, “Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees”, 22 December 2009, HCR/GIP/09/08, available at: http://www.unhcr.org/refworld/docid/4b2f4f6d2.html, paras. 65–77. 117 It is generally only where States have not yet acceded to the international refugee instruments, or if they have acceded but have not yet estab‑lished national procedures, or these procedures are not fully functioning that UNHCR may be called upon to undertake individual refugee status determination and recognize refugees under its mandate. This function, therefore, can be exercised either in a State which is, or a State which is not, a signatory to the international refugee instruments. In these situations, UNHCR conducts refugee status determination for protection purposes (in order to protect refugees from refoulement and detention, for example) and/or to facilitate a durable solution. See, for example, UNHCR, MM (Iran) v. Secretary of State for the Home Department ‑ Written Submission on Behalf of the United Nations High Commissioner for Refugees, 3 August 2010, C5/2009/2479, available at: http://www.unhcr.org/refworld/docid/4c6aa7db2.html, para. 11. 118 UNHCR, Summary Report of Informal Meeting of Experts, para. 32.

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i. Self‑identification: Self‑identification as a LGBTI person should be taken as an indication of the applicant’s sexual orientation and/or gender identity. The social and cultural background of the applicant may affect how the person self‑identifies. Some LGB individuals, for example, may har‑bour deep shame and/or internalized homophobia, leading them to deny their sexual orientation and/or to adopt verbal and physical behaviours in line with heterosexual norms and roles. Appli‑cants from highly intolerant countries may, for instance, not readily identify as LGBTI. This alone should not rule out that the applicant could have a claim based on sexual orientation or gender identity where other indicators are present.

ii. Childhood: In some cases, before LGBTI individuals come to understand their own identity fully, they may feel “different” as children. When relevant, probing this experience of “difference” can be helpful to establishing the applicant’s identity. The core attractions that form the basis for adult sexual orientation may emerge between middle childhood and early adolescence,119 while some may not experience same‑sex attraction until later in life. Likewise, persons may not be aware of their full gender identity until adolescence, early adulthood or later in life, as gender codes in many societies may be less prescriptive or strict during childhood than in (early) adult‑hood.

iii. Self‑Realization: The expression “coming out” can mean both an LGBTI person’s coming to terms with his or her own LGBTI identity and/or the individual communicating his or her identity to others. Questions about both of these “coming out” or self‑realization processes may be a useful way to get the applicant talking about his or her identity, including in the country of origin as well as in the country of asylum. Some people know that they are LGBTI for a long time before, for example, they actually pursue relationships with other people, and/or they express their identity openly. Some, for example, may engage in sexual activity (with same‑sex and/or other‑sex part‑ners) before assigning a clear label to their sexual orientation. Prejudice and discrimination may make it difficult for people to come to terms with their sexual orientation and/or gender identity and it can, therefore, be a slow process.120

iv. Gender identity: The fact that a transgender applicant has not undergone any medical treatment or other steps to help his or her outward appearance match the preferred identity should not be taken as evidence that the person is not transgender. Some transgender people identify with their chosen identity without medical treatment as part of their transition, while others do not have ac‑cess to such treatment. It may be appropriate to ask questions about any steps that a transgender applicant has taken in his or her transition.

v. Non‑conformity: LGBTI applicants may have grown up in cultures where their sexuality and/or gender identity is shameful or taboo. As a result, they may struggle with their sexual orientation or gender identity at some point in their lives. This may move them away from, or place them in op‑position to their families, friends, communities and society in general. Experiences of disapproval and of “being different” or the “other” may result in feelings of shame, stigmatization or isolation.

vi. Family Relationships: Applicants may or may not have disclosed their sexual orientation and/or gender identity to close family members. Such disclosures may be fraught with difficulty and can lead to violent and abusive reactions by family members. As noted above, an applicant may be married, or divorced and/or have children. These factors by themselves do not mean that the ap‑plicant is not LGBTI. Should concerns of the credibility of an applicant who is married arise, it may be appropriate to ask the applicant a few questions surrounding the reasons for marriage. If the applicant is able to provide a consistent and reasonable explanation of why he or she is married and/or has children, the portion of the testimony should be found credible.121

vii. Romantic and Sexual Relationships: The applicant’s relationships with and attraction to partners, or their hope to have future relationships, will usually be part of their narrative of LGBTI individuals. Not everyone, however, especially young LGBTI people, will have had romantic or sexual relation‑ships. The fact that an applicant has not had any relationship(s) in the country of origin does not

119 APA, Sexual Orientation and Homosexuality. 120 APA, Sexual Orientation and Homosexuality. 121 USCIS, Guidance for Adjudicating LGBTI Claims, pp. 39–40.

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necessarily mean that he or she is not LGBTI. It may rather be an indication that he or she has been seeking to avoid harm. Presuming that the applicant has been involved in a same‑sex rela‑tionship, decision makers need to be sensitive with regard to questioning about past and current relationships since it involves personal information which the applicant may be reluctant to dis‑cuss in an interview setting. Detailed questions about the applicant’s sex life should be avoided. It is not an effective method of ascertaining the well‑foundedness of the applicant’s fear of persecution on account of his or her sexual orientation and/or gender identity. Interviewers and decision makers need to bear in mind that sexual orientation and gender identity are about a person’s identity, whether or not that identity is manifested through sexual acts.

viii. Community Relationship: Questions about the applicant’s knowledge of LGBTI contacts, groups and activities in the country of origin and asylum may be useful. It is important to note, however, that applicants who were not open about their sexual orientation or gender identity in the country of origin may not have information about LGBTI venues or culture. For example, ignorance of commonly known meeting places and activities for LGBTI groups is not neces‑sarily indicative of the applicant’s lack of credibility. Lack of engagement with other members of the LGBTI community in the country of asylum or failure to join LGBTI groups there may be explained by economic factors, geographic location, language and/or cultural barriers, lack of such opportunities, personal choices or a fear of exposure.122

ix. Religion: Where the applicant’s personal identity is connected with his/her faith, religion and/or belief, this may be helpful to examine as an additional narrative about their sexual orienta‑tion or gender identity. The influence of religion in the lives of LGBTI persons can be complex, dynamic, and a source of ambivalence.123

Evidentiary Matters

64. The applicant’s own testimony is the primary and often the only source of evidence, especially where persecution is at the hands of family members or the community. Where there is a lack of country of origin information, the decision maker will have to rely on the applicant’s statements alone. Normally, an interview should suffice to bring the applicant’s story to light.124 Applicants should never be expected or asked to bring in documentary or photographic evidence of intimate acts. It would also be inappropriate to expect a couple to be physically demonstrative at an inter‑view as a way to establish their sexual orientation.

65. Medical “testing” of the applicant’s sexual orientation is an infringement of basic human rights and must not be used.125 On the other hand, medical evidence of transition‑related surgery, hor‑monal treatment or biological characteristics (in the case of intersex individuals) may corroborate their personal narrative.

66. Relevant and specific country of origin information on the situation and treatment of LGBTI individuals is often lacking. This should not automatically lead to the conclusion that the appli‑cant’s claim is unfounded or that there is no persecution of LGBTI individuals in that country.126 The extent to which international organizations and other groups are able to monitor and docu‑ment abuses against LGBTI individuals remain limited in many countries. Increased activism has often been met with attacks on human rights defenders, which impede their ability to document violations. Stigma attached to issues surrounding sexual orientation and/or gender identity also contributes to incidents going unreported. Information can be especially scarce for certain groups, in particular bisexual, lesbian, transgender and intersex people. It is critical to avoid automatically drawing conclusions based on information about one group or another; however, it may serve as an indication of the applicant’s situation in certain circumstances.

122 Essa v. Canada (Minister of Citizenship and Immigration), 2011 FC 1493, Canada, Federal Court, 20 December 2011, available at: http://www.unhcr.org/refworld/docid/4f901c392.html, paras. 30–31, found that the Board’s insistence on the applicant going to or have knowledge about gay venues in the country of asylum in order to be gay was not reasonable.123 APA, Practice Guidelines for LGB Clients. 124 UNHCR, Handbook, paras. 196, 203–204.125 See further, “UNHCR’s Comments on the Practice of Phallometry in the Czech Republic to Determine the Credibility of Asylum Claims based on Persecution due to Sexual Orientation”, April 2011, available at: http://www.unhcr.org/refworld/docid/4daeb07b2.html.126 See, for example, Molnar v. Canada, above footnote 39.

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Distr. GENERAL HCR/GIP/13/10/Corr. 1. 12 November 2014 Original: ENGLISH


Claims to Refugee Status related to Military Service within the context of Article 1A (2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees

UNHCR issues these Guidelines pursuant to its mandate, as contained in the Office’s Statute, in conjunction with Article 35 of the 1951 Convention relating to the Status of Refugees and Article II of its 1967 Protocol. These Guidelines complement the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention (reissued 2011) and, in particular, are to be read together with UNHCR’s Guidelines on International Protection No. 6: Religion‑Based Refugee Claims and Guidelines on International Protection No. 8: Child Asylum Claims. They replace UNHCR’s Position on Certain Types of Draft Evasion (1991).

The Guidelines, the result of broad consultations, provide legal interpretative guidance for govern‑ments, legal practitioners, decision makers and the judiciary, as well as UNHCR staff carrying out mandate refugee status determination.

The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and the Guidelines on International Protection are available at: http://www.unhcr.org/refworld/docid/4f33c8d92.html.


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I. INTRODUCTION

1. The situation of “deserters and persons avoiding military service” is explicitly addressed in UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees [“UNHCR Handbook].1 Since the publication of the UNHCR Handbook there have been considerable developments both in the practice of States and in the restrictions placed on military service by international law. Given these developments, as well as divergences in jurisprudence, UNHCR issues these Guidelines with the aim to facilitate a consistent and principled application of the refugee definition in Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees in such cases. These Guidelines examine the position of individuals who seek international protection to avoid recruitment by, and service in, State armed forces, as well as forced recruitment by non‑State armed groups.

2. These Guidelines address the definition of key terms [Part II], followed by an overview of international legal developments relating to military service [Part III]. Part IV examines the refugee determination criteria as they apply to claims involving military service. Part V considers procedural and evidentiary is‑sues. The Guidelines focus on the interpretation of the “inclusion” components of the refugee definition. Exclusion considerations are not addressed, although they may be at issue in such cases, and will need to be properly assessed.2Further, issues around maintaining the civilian and humanitarian character of asylum, while often relevant to such claims, are not dealt with in these Guidelines.3

II. TERMINOLOGY

3. For the purpose of these Guidelines, these terms are defined as follows:

Alternative service refers to service in the public interest performed instead of compulsory mil‑itary service in the State armed forces by individuals who have a conscientious objection to mil‑itary service [“conscientious objectors”]. Alternative service may take the form of civilian service outside the armed forces or a non‑combatant role in the military.4 Civilian service can involve, for example, working in State‑run health institutions, or voluntary work with charitable organisations either at home or abroad. Non‑combatant service in the military would include positions such as cooks or administrative clerks.

Conscientious objection to military service refers to an objection to such service which “derives from principles and reasons of conscience, including profound convictions, arising from religious, moral, ethical, humanitarian or similar motives.”5 Such an objection is not confined to absolute conscientious objectors [pacifists], that is, those who object to all use of armed force or partici‑pation in all wars. It also encompasses those who believe that “the use of force is justified in some circumstances but not in others, and that therefore it is necessary to object in those other cases” [partial or selective objection to military service].6 A conscientious objection may develop over time, and thus volunteers may at some stage also raise claims based on conscientious objection, whether absolute or partial.

Desertion involves abandoning one’s duty or post without permission, or resisting the call up for military duties.7 Depending on national laws, even someone of draft age who has completed his

1 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugee, (reissued, Geneva, 2011), (“UNHCR Handbook”), available at: http://www.unhcr.org/refworld/pdfid/4f33c8d92.pdf, paras. 167‑174.2 Reference is made instead to UNHCR, Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, HCR/GIP/03/05, 4 September 2003, (“UNHCR Exclusion Guidelines”), available at: http://www.unhcr.org/refworld/docid/3f5857684.html.3 See, Executive Committee (“ExCom”) Conclusion No. 94 (LII), 2002, on the civilian and humanitarian character of asylum, para. (c)(vii). 4 See, further, for example, UN Human Rights Council, Analytical report on conscientious objection to military service: Report of the United Nations High Commissioner for Human Rights, A/HRC/23/22, 3 June 2013, available at: http://www.refworld.org/docid/51b5c73c4.html.5 See, UN Commission on Human Rights, Resolution 1998/77, “Conscientious Objection to Military Service”, E/CN.4/RES/1998/77, 22 April 1998, availa‑ble at: http://www.refworld.org/docid/3b00f0be10.html. The Commission was replaced by the UN Human Rights Council in 2006.6 See, UN Conscientious Objection to Military Service, E/CN.4/Sub.2/1983/30/Rev.1, 1985 (the “Eide and Mubanga‑Chipoya report”), available at: http://www.refworld.org/pdfid/5107cd132.pdf, para. 21. See also, paras. 128‑135 regarding persecution in the context of conscientious objection to conflicts which violate basic rules of human conduct. 7 See, European Court of Human Rights, Feti Demirtaş c. Turquie, Application no. 5260/07, 17 January 2012, available at: http://www.unhcr.org/refworld/docid/4ff5996d2.html.

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or her national service and has been demobilized, but is still regarded as being subject to na‑tional service, may be regarded as a deserter under certain circumstances. Desertion can occur in relation to the police force, gendarmerie or equivalent security services, and is also the term used to apply to deserters from non‑State armed groups. Desertion may be for reasons of conscience or for other reasons.

Draft evasion occurs when a person does not register for, or does not respond to, a call up or recruitment for compulsory military service. The evasive action may be as a result of the evader fleeing abroad, or may involve, inter alia, returning call up papers to the military au‑thorities. In the latter case, the person may sometimes be described as a draft resister rather than a draft evader, although draft evader is used to cover both scenarios in these Guidelines. Draft evasion may also be pre‑emptive in the sense that action may be taken in anticipation of the actual demand to register or report for duty. Draft evasion only arises where there is mandatory enrolment in military service [“the draft”]. Draft evasion may be for reasons of conscience or for other reasons.

Forced recruitment is the term used in these Guidelines to refer to the coerced, compulsory or involuntary recruitment into either a State’s armed forces or a non‑State armed group.

Military service primarily refers to service in a State’s armed forces. This may occur in peace‑time or during a period of armed conflict, and may be on a voluntary or compulsory basis. Compulsory military service by the State is also known as conscription or “the draft”. Where an individual volunteers to join the State military, it is called enlistment.

Reservists are individuals who serve in the reserve forces of the State’s armed forces. They are not considered to be on active duty, but are required to be available to respond to any call up in an emergency.

4. Where alternatives to compulsory military service are not available, an individual’s conscientious objection may be expressed through draft evasion or desertion. However, draft evasion or deser‑tion is not synonymous with conscientious objection as other motivations, such as fear of military service or the conditions of such service may be involved. Conscientious objection, draft evasion and desertion may all take place in peacetime as well as during armed conflict. Moreover, whilst conscientious objection and evasion/desertion tend to arise in relation to conscription, they can also take place where the original decision to join the armed forces was voluntary or the obligation to undertake compulsory military service was initially accepted.8

III. INTERNATIONAL LAW ON MILITARY SERVICE

A. The Right of States to Require Military Service

5. States have a right of self‑defence under both the UN Charter and customary international law.9 States are entitled to require citizens to perform military service for military purposes;10 and this does not in itself violate an individual’s rights.11 This is recognized explicitly in human rights provi‑sions concerned with forced labour, such as Article 8 of the 1966 International Covenant on Civil

8 See, for example, UN Commission on Human Rights, Resolution 1998/77, preambular para. see note 5 above.9 Article 51, UN Charter. See also, International Court of Justice, Case concerning the Military and Paramilitary Activities in and against Nicaragua (Nica‑ragua v. United States of America) (Merits), 27 June 1986, available at: http://www.refworld.org/docid/4023a44d2.html, paras. 187‑201.10 This does not cover conscription of non‑nationals in occupied territories in the context of international armed conflict: see Article 51 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV), which states that an “Occupying Power may not compel protected persons to serve in its armed or auxiliary forces.” “Protected persons” refers in this context to civilians in the occupied territory who are not nationals of the Occupying Power.11 The UN Human Rights Committee (“HRC”) has noted this in relation to a complaint of discrimination (Article 26 of the 1966 International Covenant on Civil and Political Rights (“ICCPR”)). See, M.J.G. (name deleted) v. Netherlands, CCPR/C/32/D/267/1987, 24 March 1988, available at: http://www.unhcr.org/refworld/pdfid/50b8eca22.pdf para. 3.2; see, similarly, the earlier case of R.T.Z. (name deleted) v. Netherlands, CCPR/C/31/D/245/1987, 5 November 1987, available at: http://www.unhcr.org/refworld/pdfid/50b8ed122.pdf. That human rights law, in particular the ICCPR, applies to members of the military as well as to civilians was explicitly stated by the HRC in Vuolanne v. Finland, CCPR/C/35/D/265/1987, 2 May 1989, available at: http://www.unhcr.org/refworld/pdfid/50b8ee372.pdf.

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and Political Rights [“ICCPR”].12States may also impose penalties on persons who desert or avoid mil‑itary service where their desertion or avoidance is not based on valid reasons of conscience, provided such penalties and the associated procedures comply with international standards.13

6. The State’s right to compel citizens to undertake military service is not subject to other require‑ments in international human rights law, as well as international humanitarian and international crimi‑nal law[ see Parts III.B. and III.C. below]. In general, for military recruitment and service to be justified it needs to fulfil certain criteria: prescribed by law, implemented in a way that is not arbitrary or discriminatory, the functions and discipline of the recruits must be based on military needs and plans, and be challengeable in a court of law.14

7. The position of non‑State armed groups is different from that of States, in that only States can re‑quire military conscription. International law does not entitle non‑State armed groups, whether or not they may be the de facto authority over a particular part of the territory, to recruit on a compulsory or forced basis.

B. The Right to Conscientious Objection against Compulsory Military Service

8. The right to conscientious objection to State military service is a derivative right, based on an in‑terpretation of the right to freedom of thought, conscience and religion contained in Article 18 of the Universal Declaration of Human Rights and Article 18 of the ICCPR. International jurisprudence on this right is evolving. The UN Human Rights Committee’s [HRC] case law has shifted from characteriz‑ing the right as derived from the right “to manifest” one’s religion or belief and thus subject to certain restrictions in Article 18(3),15 to viewing it as one that “inheres in the right” to freedom of thought, conscience and religion in Article 18(1) itself.16 This is a significant shift, and has been subject to indi‑vidual concurring opinions.17 According to the HRC, the right therefore “entitles the individual to an exemption from compulsory military service if this cannot be reconciled with the individual’s religion or beliefs. The right must not be impaired by coercion.”18 The HRC has further clarified that “a State may, if it wishes, compel the objector to undertake a civilian alternative to military service, outside the military sphere and not under military command. The alternative service must not be of a punitive na‑ture. It must be a real service to the community and compatible with respect for human rights.”19 Even in its earlier jurisprudence, where the HRC based its decisions on the right to manifest one’s religion or belief [found in Article 18(3) read together with 18(1) ICCPR], the State had to demonstrate why such a restriction was “necessary”, given that many other countries manage to reconcile the interests of the individual with the interests of the State through the provision of alternative service.20

12 Article 8(3)(c)(ii) ICCPR exempts from the prohibition on forced or compulsory labour (found in Article 8(3)(a)), “Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors.” In addition, Article 2(2)(a) of the 1930 International Labour Organization (“ILO”) Convention No. 29: Forced Labour Convention exempts from its prohibition on forced or compulsory labour (Article 1(1)), “any work or service exacted in virtue of compulsory military service laws for work of a purely military character.” The reference to “military service laws” indicates that for the exemption to be valid, it must be set out in law. See also, the decisions of the HRC in Venier and Nicholas v. France, CCPR/C/69/D/690/1996, 1 August 2000, available at: http://www.unhcr.org/refworld/pdfid/50b8ec0c2.pdf and Foin v. France, CCPR/C/67/D/666/1995, 9 November 1999, where the HRC stated that under Article 8 of the ICCPR States may require service of a military character, available at: http://www.unhcr.org/refworld/docid/4a3a3aebf.html, para. 10.3.13 On procedures, in the European Court of Human Rights, see Savda c. Turquie, Application No. 42730/05,12 June 2012, available at: http://www.refworld.org/docid/4fe9a9bb2.html, see also, Feti Demirtaş c. Turquie, see note 7 above.14 Inter‑American Commission on Human Rights (“IACHR”), “Fourth report on the situation of human rights in Guatemala”, OEA/Ser.L/V/II.83, Doc. 16 rev., 1 June 1993, chap. V. See also, IACHR, Piché Cuca v. Guatemala, Report No. 36/93, case 10.975, decision on merits, 6 October 1993, indicating that the conscription process must be challengeable in a court of law, available at: http://www.refworld.org/docid/5020dd282.html.15 Article 18(3) ICCPR provides certain limitations on the right to manifest one’s religion or belief, namely “prescribed by law and (…) necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” For further analysis, see UNHCR, Guidelines on International Protection No. 6: Religion‑Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, HCR/GIP/04/06, 28 April 2004, (“UNHCR Guidelines on Religion‑Based Claims”), available at: http://www.unhcr.org/refworld/docid/4090f9794.html, para. 15. Moreover, unlike other rights in the Covenant, restrictions on the grounds of national security are not permitted at all. As noted by the HRC, “... such restrictions must not impair the very essence of the right in question.” See HRC, Yoon and Choi v. Republic of Korea, CCPR/C/88/D/1321‑1322/2004, 23 January 2007, available at: http://www.unhcr.org/refworld/docid/48abd57dd.html, para. 8.3, and Eu‑min Jung and Others v. Republic of Korea, CCPR/C/98/D/1593‑1603/2007, 30 April 2010, available at: http://www.unhcr.org/refworld/pdfid/4c19e0322.pdf, para. 7.4. 16 See, HCR, Min‑Kyu Jeong at al v. Republic of Korea, CCPR/C/101/D/1642‑1741/2007, 27 April 2011, available at: http://www.unhcr.org/refworld/docid/4ff59b332.html paras. 7.3 ‑ 7.4; Atasoy and Sarkut v. Turkey, CCPR/C/104/D/1853‑1854/2008, 19 June 2012, available at: http://www.unhcr.org/refworld/docid/4ff5b14c2.html, paras.10.4 ‑ 10.5; and Jong‑nam Kim et al v. Republic of Korea, CCPR/C/106/D/1786/2008, 1 February 2013, available at: http://www.refworld.org/docid/532a9f1a4.html, paras. 7.4 – 7.5.17 See, Individual opinion of Committee member Mr. Gerarld L. Neuman, jointly with members Mr. Yuji Iwasawa, Mr. Michael O’Flaherty and Mr. Walter Kaelin (concurring), Atasoy and Sarkut v. Turkey, ibid.18 Min‑Kyu Jeong at al v. Republic of Korea, para.7.3; Atasoy and Sarkut v. Turkey, para. 10.4. and Jong‑nam Kim et al v. Republic of Korea, para. 7.4, see note 16 above.19 Ibid. 20 See, Yoon and Choi v. Republic of Korea, para. 8.4, and Eu‑min Jung and Others v. Republic of Korea, para. 7.4, see both note 15 above.

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9. Thus a conscientious objector’s rights under Article 18 ICCPR will be respected where he or she is (i) exempted from the obligation to undertake military service or (ii) appropriate alternative ser‑vice is available. In assessing the appropriateness of alternative service, it is generally considered that it needs to be compatible with the reasons for the conscientious objection; of a non‑com‑batant or civilian character; in the public interest; and not punitive.21 For example, civilian service under civilian administration would be necessary in the cases of individuals who object outright to any association with the military.22 However, where the objection is specifically to the personal carrying of arms the option of non‑combatant service in the military may be appropriate. Many States avoid the difficulty of having to evaluate the sincerity of a claim to conscientious objection by allowing the person a free choice between military and alternative service.23 In some States recognition of conscientious objection has been granted only to certain religious groups. However, as noted above, this would not be consistent with the scope of the right to freedom of thought, conscience and religion, nor with the prohibition on discrimination.24

10. The right to conscientious objection is also reaffirmed in regional instruments, either explicitly or by interpretation,25 as well as in various international standard setting documents.26

11. The right to conscientious objection applies to absolute, partial, or selective objectors [see II.];27 volunteers as well as conscripts before and after joining the armed forces; during peace time and during armed conflict.28 It includes objection to military service based on moral, ethical, hu‑manitarian or similar motives.29

21 UN Commission on Human Rights resolution 1998/77, para. 4, see note 5 above. See also, note 18 above. 22 See,, Min‑Kyu Jeong at al v. Republic of Korea, para.7.3; Atasoy and Sarkut v. Turkey, para. 10.4; and Jong‑nam Kim et al v. Republic of Korea, para. 7.4, note 16 above.23 For a general overview of State practice, see, Analytical report on conscientious objection to military service: Report of the United Nations High Commissioner for Human Rights, see note 4 above. See also, War Resisters’ International, World Survey of Conscription and Conscientious Objection to Military Service, avail‑able at: http://www.wri‑irg.org/co/rtba/index.html. With respect to European countries see also the judgment of the European Court of Human Rights in Bayatyan v. Armenia, Application No. 23459/03, 7 July 2011, available at: http://www.unhcr.org/refworld/docid/4e254eff2.html, para. 110.24 See, for example, HRC, General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion (Article 18), CCPR/C/21/Rev.1/Add.4, 30 July 1993, available at: http://www.unhcr.org/refworld/pdfid/453883fb22.pdf, stating that “…there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs…”, para. 11. With regard to State practice recognizing conscientious objection even when it originates from views outside of those of certain formal religions, see, Analytical report on conscientious objection to military service: Report of the United Nations High Commissioner for Human Rights, para. 12, see note 4 above. See also, Brinkhof v. Netherlands, CCPR/C/48/D/402/1990, 29 July 1993, available at: http://www.unhcr.org/refworld/docid/4a3a3ae913.html.25 The right to conscientious objection is explicitly recognized in two regional treaties: 2000 Charter of Fundamental Rights of the European Un‑ion, Article 10(2); 2005 Ibero‑American Convention on Young People’s Rights, Article 12(3). The right is also derived from the right to freedom of thought, conscience and religion in regional human rights treaties, and has been recognized as such by the European Court of Human Rights (see Bayatyan v. Armenia, para. 110, note 28 above followed by Feti Demirtaş c. Turquie, note 7 above; Savda c. Turquie, see note 13 above; and Tarhan c. Turquie, Application No. 9078/06, 17 July 2012, available at: http://www.refworld.org/docid/51262a732.html)) and by the IACHR (see Cristián Daniel Sahli Vera et al. v. Chile, Case 12.219, Report no. 43/05, 10 March 2005, available at: http://www.unhcr.org/refworld/pdfid/4ff59edc2.pdf; see also the friendly settlement in Alfredo Diaz Bustos v. Bolivia, Case 14/04, Report no. 97/05, 27 October 2005, available at: http://www.unhcr.org/refworld/pdfid/4ff59fbc2.pdf, para. 19). See also IACHR, Annual Report, 1997, Chapter VII: Recommendation 10, available at: http://www.unhcr.org/refworld/docid/50b8bd162.html; Council of Europe Parliamentary Assembly, Recommendation 1518 (2001) on the exercise of the right of conscientious objection to military service in Council of Europe Member States, 23 May 2001, available at: http://www.unhcr.org/refworld/docid/5107cf8f2.html; Council of Europe Committee of Ministers, Recommendation No. R (87) 8, 9 April 1987, available at: http://www.unhcr.org/refworld/docid/5069778e2.html; and Council of Europe Committee of Ministers, Recommendation CM/Rec (2010) 4 on human rights of members of the armed forces, 24 February 2010, available at: http://www.unhcr.org/refworld/docid/506979172.html. 26 See, UN General Assembly resolution, 33/165, 1978 on Status of persons refusing service in military or police forces used to enforce apart‑heid, available at: http://www.refworld.org/docid/3b00f1ae28.html. See HRC, General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion (Article 18), at para. 11, see note 24 above, as well as the HRC’s Concluding Observations on Ukraine, CCPR/CO/73/UKR, 12 No‑vember 2001, available at: http://www.unhcr.org/refworld/docid/3cbbeb1c4.html para. 20, and those on Kyrgyzstan, CCPR/CO/69/KGZ, 24 July 2000, available at: http://www.unhcr.org/refworld/docid/507572ef2.html, para. 18. The former UN Commission on Human Rights also affirmed that a right to conscientious objection derives from the right to freedom of thought, conscience and religion (UN Commission on Human Rights Resolution, Conscientious objection to military service, E/CN.4/RES/1989/59, 8 March 1989, available at: http://www.unhcr.org/refworld/docid/ 3b00f0b24.html, reinforced and developed in resolutions E/CN.4/RES/1993/84, 10 March 1993, available at: http://www.unhcr.org/refworld/docid/3b00f1228c.html; E/CN.4/RES/1995/83, 8 March 1995, available at: http://www.unhcr.org/refworld/docid/3b00f0d220.html; E/CN.4/RES/1998/77, see note 5 above, E/CN.4/RES/2000/34, 20 April 2000, available at: http://www.unhcr.org/refworld/docid/3b00efa128.html; E/CN.4/RES/2002/45, 23 April 2002, available at: http://www.unhcr.org/refworld/docid/5107c76c2.html; and E/CN.4/RES/2004/35, 19 April 2004, available at: http://www.unhcr.org/refworld/docid/415be85e4.html). Its successor, the UN Human Rights Council, has endorsed this position in its 2012 resolution on conscientious objection (A/HRC/RES/20/2, 16 July 2012, available at: http://www.unhcr.org/refworld/docid/501661d12.html) and latest in its 2013 resolution (A/HRC/24/L.23, 23 September 2013, available at: http://www.refworld.org/docid/526e3e114.html).27 Although the HRC has not discussed partial or selective conscientious objection either in General Comment No. 22: The Right to Freedom of Thought, Conscience and Religion (Article 18), see note 29 above or in its recent decisions on individual complaints, a number of countries do make provision for selective or partial conscientious objectors. See, for example, Analytical report on conscientious objection to military service: Report of the United Nations High Commissioner for Human Rights, para 47, see note 4 above. 28 See, Part II on Terminology.29 See also Savda c. Turquie, para. 96, note 13 above.

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C. Prohibition on Underage Recruitment and Participation in Hostilities

12. Explicit safeguards exist to prevent the exposure of children to military service.30 All recruit‑ment [both compulsory and voluntary] in State armed forces and the participation in hostilities31 of those under 15 years of age is prohibited under international treaty law.32 Such recruitment amounts to a war crime.33 Whether conducted by governments or by non‑State armed groups, compulsory recruitment of persons under 18 years of age is also prohibited pursuant to the 2000 Optional Protocol to the 1989 Convention on the Rights of the Child [“CRC”] on the involvement of children in armed conflict [“Optional Protocol to the CRC”].34 A similar restriction is found in the 1999 International Labour Organization Convention on Worst Forms of Child Labour.35 The 2000 Optional Protocol to the CRC requires States to “take all feasible measures” to prevent children under the age of 18 taking a “direct part in hostilities” whether as members of its armed forces or other armed groups and prohibits outright any voluntary recruitment of children under 18 years into non‑State armed groups.36 Whilst voluntary enlistment of children of 16 years and above is permitted for State armed forces, the State is obliged to put in place safeguards to ensure, inter alia, that any such recruitment is genuinely voluntary.37 Despite the different age limits set by inter‑national law, it is UNHCR’s view that forced recruitment and/or direct participation in hostilities of a child below the age of 18 years in the armed forces of the State or by a non‑State armed group would amount to persecution.38 Regional instruments also contain prohibitions on the recruitment and direct participation of children in hostilities.39

IV. SUBSTANTIVE ANALYSIS

A. Well‑founded Fear of Being Persecuted

13. What amounts to a well‑founded fear of being persecuted depends on the particular circumstanc‑es of the case, including the applicant’s background, profile and experiences considered in light of up‑to‑date country of origin information.40 It is important to take into account the personal experiences of the applicant, as well as the experiences of others similarly situated, since these may well show that there is a reasonable likelihood that the harm feared by the applicant will materialize sooner or later.41 The first‑tier question to ask is: What would be the predicament [consequence(s)] for the applicant if returned? The second‑tier question is: Does that predicament [or consequence(s)] meet the threshold of persecution? The standard of proof to determine the risk is reasonable likelihood.42

30 See, in this regard, UN Security Council, Resolution 1882 (2009) on children and armed conflict, S/RES/1882 (2009), 4 August 2009, available at: http://www.unhcr.org/refworld/docid/4a7bdb432.html.31 Technically, international humanitarian law distinguishes between non‑international armed conflict and international armed conflict in this respect. In non‑international armed conflict (Article 4(3)(c), Additional Protocol II to the 1949 Geneva Conventions, relating to the Protection of Victims of Non‑In‑ternational Armed Conflict (“Additional Protocol II”)) the prohibition relates to use in hostilities. In international armed conflict (Article 77(2), Additional Protocol I to the 1949 Geneva Conventions, relating to the Protection of International Armed Conflict (“Additional Protocol I”)), it is limited to taking di‑rect part in hostilities. The Convention on the Rights of the Child (“CRC”) adopts the narrower “direct part in hostilities” standard, see Article 38(2), CRC. 32 Article 77(2), Additional Protocol I; Article 4(3)(c), Additional Protocol II; Article 38(2) CRC. 33 See, Article 8(2)(b)(xxvi) and 8(2)(e)(vii) of the 1998 Statute of the International Criminal Court (“ICC Statute”) which lists as war crimes “conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.” See also International Criminal Court (“ICC”), Situation in the Democratic Republic of the Congo, in the case of the Prosecutor v. Thomas Lubanga Dyilo, ICC‑01/04‑01/06, 14 March 2012, available at: http://www.unhcr.org/refworld/docid/4f69a2db2.html; Special Court for Sierra Leone (“SCSL”), Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao (the RUF accused) (Trial judgment), Case No. SCSL‑04‑15‑T, 2 March 2009, available at: http://www.unhcr.org/refworld/docid/49b102762.html, at para. 184 (finding that the prohibition on such recruitment is customary international law). Further discussion of what con‑stitutes the war crime of underage recruitment can be found in the SCSL, Prosecutor v. Charles Ghankay Taylor, SCSL‑03‑01‑T, 18 May 2012, available at: http://www.unhcr.org/refworld/docid/50589aa92.html. 34 Articles 2 and 4, 2000 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.35 Article 3(a), 1999 ILO Convention No. 182 on Worst Forms of Child Labour.36 Articles 1 and 4, 2000 Optional Protocol to CRC. 37 Article 3, 2000 Optional Protocol to CRC. See also, UNHCR Guidelines on International Protection No. 8 Child Asylum Claims under Articles 1A(2) and 1(F) of the 1951 Convention and /or 1967 Protocol relating to the Status of Refugees, HCR/GIP/09/08, 22 December 2009, (“UNHCR Guidelines on Child Asylum Claims”), available at: http://www.unhcr.org/refworld/docid/4b2f4f6d2.html, para. 22.38 UNHCR Guidelines on Child Asylum Claims, para. 21. 39 See, Article 22(2), 1990 African Charter on the Rights and Welfare of the Child, and Article 12(3), 2005 Ibero‑American Convention on Young People’s Rights.40 UNHCR Handbook, paras. 51‑53, see note 1 above.41 UNHCR Handbook, paras. 42‑43, see note 1 above, and UNHCR Guidelines on Religion‑Based Claims, para. 14, see note 15 above.42 See, UNHCR, Note on the Burden and Standard of Proof, 16 December 1998, (“Note on the Burden and Standard of Proof”), available at: http://www. refworld.org/docid/3ae6b3338.html, para. 10; UNHCR, Interpreting Article 1 of the 1951 Convention relating to the Status of Refugees, April 2001, (“UNHCR Interpreting Article 1”), available at: http://www.unhcr.org/refworld/docid/3b20a3914.html, paras. 16‑17.

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14. Persecution will be established if the individual is at risk of a threat to life or freedom,43 other serious human rights violations, or other serious harm.44 By way of example, disproportionate or arbitrary punishment for refusing to undertake State military service or engage in acts contrary to international law – such as excessive prison terms or corporal punishment – would be a form of persecution. Other human rights at stake in such claims include non‑discrimination and the right to a fair trial right, as well as the prohibitions against torture or inhuman treatment, forced labour and enslavement/servitude.45

15. In assessing the risk of persecution, it is important to take into account not only the direct consequences of one’s refusal to perform military service [for example, prosecution and punish‑ment], but also any negative indirect consequences. Such indirect consequences may derive from non‑military and non‑State actors, for example, physical violence, severe discrimination and/or harassment by the community. Other forms of punitive retribution for draft evasion or desertion may also be evident in other situations, such as suspension of rights to own land, enrol in school or university, or access social services.46 These types of harm may amount to persecution if they are sufficiently serious in and of themselves, or if they would cumulatively result in serious restrictions on the applicant’s enjoyment of fundamental human rights, making their life intolerable.

16. Claims relating to military service may arise in various situations. This section outlines five common types of claims, albeit with some overlap.

(i) Objection to State Military Service for Reasons of Conscience [absolute or partial conscientious objectors]

17. In assessing what kinds of treatment would amount to persecution in cases where the appli‑cant is a conscientious objector [see V. A. below on issues relating to credibility and genuineness of the applicant’s conviction(s)], the key issue is whether the national law on military service ade‑quately provides for conscientious objectors, by either: (i) exempting them from military service, or (ii) providing appropriate alternative service. As mentioned in Part III above, States can legitimately require that citizens perform military or alternative service. However, where this is done in a man‑ner that is inconsistent with international law standards, conscription may amount to persecution.

18. In countries where neither exemption nor alternative service is possible, a careful examination of the consequences for the applicant will be needed. For example, where the individual would be forced to undertake military service or participate in hostilities against their conscience, or risk being subjected to prosecution and disproportionate or arbitrary punishment for refusing to do so, persecution would arise. Moreover, the threat of such prosecution and punishment, which puts pressure on conscientious objectors to change their conviction, in violation of their right to free‑dom of thought, conscience or belief, would also meet the threshold of persecution.47

19. The persecution threshold would not be met in countries that do not make provision for alternative service, but where the only consequence is a theoretical risk of military service be‑cause in practice conscription is not enforced or can be avoided through the payment of an administrative fee.48 Similarly, where a draft evader is exempted from military service, or where a deserter is offered an honourable discharge, the issue of persecution would not arise, unless other factors are present.

43 Article 33(1), 1951 Convention. 44 See, UNHCR Handbook, para. 51‑53, see note 1 above. See also, UNHCR, Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of Being Trafficked, HCR/GIP/06/07, 7 April 2006, available at: http://www.unhcr.org/refworld/docid/443679fa4.html, para. 14, and UNHCR Handbook, paras. 54‑55, see note 1 above.45 See, for example, IACHR, “Fourth report on the situation of human rights in Guatemala”, OEA/Ser.L/V/II.83, Doc. 16 rev., 1 June 1993, chap. V.46 Concerning the denial of enrolment into school or university see for example, UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum‑Seekers from Eritrea, April 2009, available at: http://www.refworld.org/docid/49de06122.html, page 13; regarding suspension of land ownership and denial of access to public services see for example, UNHCR, Eligibility Guidelines for Assessing the International Protection Needs of Asylum‑Seekers from Eritrea, 20 April 2011, HCR/EG/ERT/11/01, available at: http://www.refworld.org/docid/4dafe0ec2.html, pages 10 and 25 respectively. 47 See, UN Commission on Human Rights, Civil and Political Rights, Including the Question of Torture and Detention: Report of the Working Group on Arbitrary Detention, E/CN.4/2001/14, 20 December 2000, recommendation No. 2, available at: http://www.refworld.org/docid/3b00f54d18.html, paras. 91‑94. 48 Excessive administrative fees designed to deter genuine conscientious objectors from opting for alternative service or which are considered punitive would be considered discriminatory and may on a cumulative basis meet the threshold of persecution.



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20. Where alternative service is available, but punitive in nature and implementation, because of the type of service involved or its disproportionate duration, the issue of persecution may none‑theless be at issue. A disparity in the length of alternative service will not, in itself, be sufficient to meet the threshold of persecution. If, for example, the duration of alternative service is based on objective and reasonable criteria, such as the nature of the specific service concerned, or the need for special training in order to accomplish that service, persecution would not arise.49 However, where alternative service is merely theoretical, for instance, because the relevant legislative pro‑vision has never been implemented; the procedure for requesting alternative service is arbitrary and/or unregulated; or the procedure is open to some but not all, further inquiries need to be un‑dertaken. In cases where the applicant has not availed him or herself of the existing procedures it would be important to understand their reasons for not doing so. If found that the reasons relate to a well‑founded fear of being persecuted for publicly expressing his or her convictions, this would need to be factored into the overall analysis.

(ii) Objection to Military Service in Conflict Contrary to the Basic Rules of Human Conduct

21. Refugee claims relating to military service may also be expressed as an objection to (i) a particu‑lar armed conflict or (ii) the means and methods of warfare [the conduct of a party to a conflict]. The first objection refers to the unlawful use of force [jus ad bellum], while the second refers to the means and methods of warfare as regulated by international humanitarian law [jus in bello], as well as international human rights and international criminal law.50 Collectively such objections relate to being forced to participate in conflict activities that are considered by the applicant to be contrary to the basic rules of human conduct.51 Such objections may be expressed as an objection on the basis of one’s conscience, and as such can be dealt with as a case of “conscientious objection” [see (i) above]; however, this will not always be the case. Individuals may, for example, object to partic‑ipating in military activities because they consider this is required to conform to their military code of conduct, or they may refuse to engage in activities which constitute violations of international humanitarian, criminal or human rights law.

22. Recognizing the right to object on such grounds and to be granted refugee status is consistent with the rationale underlying the exclusion clauses in the 1951 Convention. Articles 1F(a) and 1F(c) exclude from protection individuals in respect of whom there are serious reasons for considering that they have committed crimes against peace, war crimes or crimes against humanity or are guilty of acts contrary to the purposes and principles of the United Nations, and who are therefore considered undeserving of international protection as refugees. The obligation on individuals under international humanitarian law and international criminal law to refrain from certain acts during armed conflict would find reflection in international refugee law in the case of individuals who are at risk of being punished for exercising the restraint expected of them under international law [see paragraph 14]. In this regard, it is important to note the absence of a defence of superior orders which are manifestly unlawful.52

Objection to Participating in an Unlawful Armed Conflict

23. Where an armed conflict is considered to be unlawful as a matter of international law [in violation of jus ad bellum], it is not necessary that the applicant be at risk of incurring individual criminal respon‑sibility if he or she were to participate in the conflict in question, rather the applicant would need to establish that his or her objection is genuine, and that because of his or her objection, there is a risk of persecution. Individual responsibility for a crime of aggression only arises under international law for

49 See the HRC’s approach in Foin v. France, see note 12 above. See similarly, Richard Maille v. France, CCPR/C/69/D/689/1996, 31 July 2000, available at: http://www.unhcr.org/refworld/docid/3f588efd3.html, and Venier and Nicholas v. France, see note 12 above.50 Jus ad bellum refers to the constraints under international law on the use of force, whereas jus in bello governs the conduct of the parties to an armed conflict. Traditionally, the latter refers to international humanitarian law but relevant standards are also found in applicable provisions of international human rights law and international criminal law.51 See, UNHCR Handbook, paras. 170‑171, note 1 above. With regard to para. 171: “Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft evasion could, in light of all other requirements of the definition, in itself be regarded as persecution.” See also, at a regional level, Council of the European Union, “Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who Otherwise Need International Protection and the Content of the Protection Granted”, OJ/L 304/12, 30 Sept. 2004, available at: http://www.unhcr.org/refworld/docid/4157e75e4.html. Article 9(2)(e) which includes as a form of persecution: “[p]rosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2).” 52 See, for example, Article 33, ICC Statute, see note 33 above.

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persons who were in a position of authority in the State in question.53 Soldiers who enlisted prior to or during the conflict in question may also object as their knowledge of or views concerning the illegality of the use of force evolve.

24. In determining the legality of the conflict in question condemnation by the international com‑munity is strong evidence, but not essential for finding that the use of force is in violation of international law. Such pronouncements are not always made, even where objectively an act of aggression has taken place. Thus, a determination of illegality with regard to the use of force needs to be made through the application of the governing rules under international law. The relevant norms are the obligation on States to refrain from the threat or use of force against other States; the right of individual or collective self‑defence; and the authorization of the use of force in line with the UN Security Council’s powers to maintain peace and security.54

25. If the conflict is objectively assessed not to be an unlawful armed conflict under international law, the refugee claim will ordinarily fail unless other factors are present. Likewise, where the legal‑ity of the armed conflict is not yet settled under international law, the application may be assessed pursuant to (i) above as a conscientious objector case.

Objection to the Means and Methods of Warfare [Conduct of the Parties]

26. Where the applicant’s objection is to the methods and means employed in an armed conflict [that is, the conduct of the one or more of the parties to the conflict], it is necessary to make an assessment of the reasonable likelihood of the individual being forced to participate in acts that violate standards prescribed by international law. The relevant standards can be found in inter‑national humanitarian law [jus in bello], international criminal law, as well as international human rights law, as applicable.

27. War crimes and crimes against humanity are serious violations which entail individual respon‑sibility directly under international law [treaty or custom]. Developments in the understanding of the elements of such crimes must be taken into account in determining what kinds of conduct or methods of warfare constitute such crimes.55 Moreover, when assessing the kinds of acts an indi‑vidual may be forced to commit in an armed conflict, other violations of international humanitarian law may also be relevant on a cumulative basis. The relevance of international human rights law in international or non‑international armed conflict situations is also important to bear in mind.

28. Determining whether there is a reasonable likelihood that the individual would be forced to commit acts or to bear responsibility for such acts which violate the basic rules of human conduct will normally depend on an evaluation of the overall conduct of the conflict in question. Thus, the extent to which breaches of the basic rules of human conduct occur in the conflict will be relevant. However, it is the risk of being compelled to become involved in the act(s), rather than the conflict alone that is at issue, so the individual circumstances of the applicant must thus be examined, bearing in mind the role in which he or she will be engaged.

29. If the applicant is likely to be deployed in a role that excludes exposure to the risk of participat‑ing in the act(s) in question – for example, a non‑combatant position such as a cook, or logistical or technical support roles only – then a claim of persecution is unlikely to arise without additional factors. Additional factors might include the link between the applicant’s logistical or technical support role and the foreseeability of [or contribution to] the commission of crimes in violation of international humanitarian or international criminal law. Further, the applicant’s reasons for object‑

53 See, for example, International Criminal Court, Elements of Crimes, ICC‑ASP/1/3 at 108, U.N. Doc. PCNICC/2000/1/Add.2 (2000), Article 8 bis, available at: http://www.unhcr.org/refworld/pdfid/4ff5dd7d2.pdf.54 See respectively, Articles 2(4), 51 and 42 UN Charter. See also, UN General Assembly, Declaration on the Inadmissibility of Intervention and Interfer‑ence in the Internal Affairs of States, 9 December 1981, A/RES/36/103, available at: http://www.refworld.org/docid/3b00f478f.html.55 For an overview, see UNHCR’s Background Note on Exclusion, 4 September 2003, available at: http://www.unhcr.org/refworld/docid/3f5857d24.html, paras. 30‑32. Examples of war crimes in the context of an international armed conflict are wilful killing of civilians, soldiers hors de combat or prisoners of war; torture; killing or wounding treacherously individuals belonging to the hostile army; intentionally directing attacks against the civilian population; rape; recruitment of children under the age of fifteen years into the armed forces or using them to participate actively in hostili‑ties; and use of poisonous weapons. In a non‑international armed conflict, war crimes include intentionally directing attacks against civilians; killing or wounding treacherously a combatant adversary; rape; recruitment of children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities.

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ing – regardless of the foreseeability or remoteness of the commission of crimes linked to his or her activities – may be sufficient to qualify him or her as a conscientious objector [see (i) above].

30. By contrast, where there is a reasonable likelihood that an individual may not be able to avoid deploy‑ment in a combatant role that will expose him or her to the risk of committing illegal acts, his or her fear of being persecuted would be considered well‑founded [see paragraph 14]. In some cases the conflict in question may be one that is not generally characterized by violations of international law. However, the in‑dividual in question may be a member of a unit whose particular duties mean that it is specifically, or more likely, to be implicated in violations of basic rules of human conduct. In such circumstances there may be a reasonable likelihood that the individual concerned will be forced to commit, for example, war crimes or crimes against humanity. Where options are available to be discharged, reassigned [including to alternative service] or to have an effective remedy against superiors or the military which will be fairly examined and without retribution, the issue of persecution will not arise, unless other factors are present.56

(iii) Conditions of State Military Service

31. In cases involving conditions within the State armed forces, a person is clearly not a refugee if his or her only reason for desertion or draft evasion is a simple dislike of State military service or a fear of combat. However, where the conditions of State military service are so harsh as to amount to perse‑cution the need for international protection would arise.57 This would be the case, for instance, where the terms or conditions of military service amount to torture or other cruel or inhuman treatment,58 violate the right to security59 and integrity of person,60 or involve forced or compulsory labour,61 or forms of slavery or servitude [including sexual slavery].62

32. Such cases may in particular involve discrimination on the grounds of ethnicity, or gender. Where the ill‑treatment feared is carried out within the State armed forces by military personnel, it is nec‑essary to assess whether such practices are systemic and/or in practice authorized, tolerated or con‑doned by the military hierarchy. An assessment has to be made regarding the availability of redress against such ill‑treatment.

33. Under international law the prohibition of “forced or compulsory labour”63 does not encompass military or alternative service. Nevertheless, where it can be established that compulsory military service is being used to force conscripts to execute public works, and these works are not of a “purely military character” or not exacted in the case of an emergency, and do not constitute a necessity for national defence or a normal civic obligation, such work constitutes forced labour.64 According to the International Labour Organization, the condition of a “purely military character” is aimed specifically

56 See, for example, Analytical report on conscientious objection to military service: Report of the United Nations High Commissioner for Human Rights, see note 4 above, concerning the practice in some States of allowing enlisted soldiers to move to a different non‑combatant unit if they develop a conscientious objection to a particular conflict or bearing arms altogether, paras. 26‑27. Such an option may not be available though for an individual whose objection to a particular conflict is not based on conscientious objection.57 See, for example, Lord Justice Laws in obiter dictum “I should emphasise that it is plain (indeed uncontentious) that there are circumstances in which a conscientious objector may rightly claim that punishment for draft evasion would amount to persecution: where the military service to which he is called involves acts, with which he may be associated, which are contrary to basic rules of human conduct; where the conditions of military service are themselves so harsh as to amount to persecution on the facts; where the punishment in question is disproportionately harsh or severe. I am here addressing the case where none of these additional factors is present” in Yasin Sepet, Erdem Bulbul v. Secretary of State for the Home Department, C/2777; C/2000/2794, United Kingdom: Court of Appeal (England and Wales), 11 May 2001, available at: http://www.unhcr.org/refworld/docid/3ffbcb024.html, para. 61. See UN Working Group on Arbitrary Detention, Opinion No. 24/2003 (Israel), E/CN.4/2005/6/Add.1, 19 November 2004, available at: http://www.unhcr.org/refworld/pdfid/470b77b10.pdf. Similarly, HRC, General Comment No. 32: Right to equality before courts and tribunals and to a fair trial (Article 14), 23 August 2007, available at: http://www.unhcr.org/refworld/docid/478b2b2f2.html, stating that, “Repeated punishment of conscientious objectors for not having obeyed a renewed order to serve in the military may amount to punishment for the same crime if such subsequent refusal is based on the same constant resolve grounded in reasons of conscience”, para. 55; see also UN Commission on Human Rights, Resolution 98/77, para. 5, see note 5 above. Subsequent to the HRC’s ruling on Article 18 and a right to conscientious objection in Yoon and Choi v. Republic of Korea, see note 15 above, the UN Working Group on Arbitrary Detention has stated that the imprisonment of a conscientious objector for refusing to take up military service constitutes arbitrary detention as it is a violation of the rights guaranteed in Article 18 ICCPR as well as Article 9 ICCPR: Opinion No. 16/2008 (Turkey), A/HRC/10/21/Add.1, 4 February 2009, available at: http://www.unhcr.org/refworld/pdfid/5062b12e2.pdf. See also the European Court of Human Rights that held that the cumulative effect of repeated prosecution and punishment of conscientious objectors for desertion was their “civil death” amounting to degrading treatment in violation of Article 3 of the ECHR. See Űlke v. Turkey, Application No. 39437/98, 24 January 2006, available at: http://www.unhcr.org/refworld/docid/4964bd752.html as well as Savda c. Turquie, note 13 above and Tarhan c. Turquie, note 21 above, and Feti Demirtaş c. Turquie, see note 7 above.58 See, Article 7 ICCPR.59 See, Article 9 ICCPR.60 See for an interpretation, Articles 7, 9 and 17 ICCPR.61 See, Article 8(3) ICCPR and Article 1(b) of the Abolition of Forced Labour Convention, 1957 (No. 105).62 See, Article 8(1) ICCPR and Article 6 of the 1979 Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”).63 See, Article 8 ICCPR.64 1930 ILO Convention No. 29 concerning Forced or Compulsory Labour. See also, IACHR, “Fourth report on the situation of human rights in Guatema‑la”, OEA/Ser.L/V/II.83, Doc. 16 rev., 1 June 1993, chap. V.

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at preventing the call up of conscripts for public works.65 In situations of emergency, which would endanger the existence of the State or well‑being of the whole or part of the population, conscripts may nevertheless be called upon to undertake non‑military work. The duration and extent of com‑pulsory service, as well as the purposes for which it is used, need to be confined to what is strictly required in the given situation.66 Using a conscript to gain profit through his or her exploitation [e.g. slavery, sexual slavery, practices similar to slavery, and servitude] is prohibited by international law and criminalized in the national legislation of a growing number of States.

34. As with other refugee claims outlined above (i) ‑ (ii), if the applicant has the possibility of dis‑charge, reassignment [including appropriate alternative service] and/or an effective remedy, with‑out retribution, the issue of persecution will not arise, unless other factors are present.

(iv) Forced Recruitment and/or Conditions of Service in Non‑State Armed Groups

35. As far as forced recruitment in non‑State armed groups is concerned, it is recalled that non‑State armed groups are not entitled to recruit by coercion or by force.67 A person who seeks inter‑national protection abroad because of feared forced recruitment, or re‑recruitment, by non‑State armed groups, may be eligible for refugee status provided the other elements of the refugee defini‑tion are established; in particular that the State is unable or unwilling to protect the person against such recruitment [see paragraphs 42‑44 and 60‑61 below]. Likewise, forced recruitment by non‑State groups to carry out non‑military works could amount to, inter alia, forced labour, servitude and/or enslavement and constitute persecution.68

36. Where the applicant would be subjected to conditions of service that constitute serious viola‑tions of international humanitarian or international criminal law,69 serious human rights violations or other serious harm, persecution would arise.70

(v) Unlawful Child Recruitment

37. Special protection concerns arise where children are at risk of forced recruitment and service.71 The same is true for children who may have “volunteered” for military activities with the State’s armed forces or non‑State armed groups. A child’s vulnerability and immaturity make him or her particularly susceptible to coerced recruitment and obedience to the State’s armed forces or a non‑State armed group; this must be taken into account.

38. As outlined at III.C. above, there are important restrictions on the recruitment and participation in hostilities of children under international human rights law and international humanitarian law, whether related to an international or a non‑international armed conflict, and relating to both State armed forces and non‑State armed groups.72 Children need to be protected from such violations; as such, a child evading forced recruitment or prosecution and/or punishment or other forms of serious retaliation for desertion would have a well‑founded fear of persecution.

39. There may be cases where children “volunteer” under pressure, or are sent to fight by their parents or communities. Such cases can similarly give rise to refugee status. The key question is the likelihood of risk that the child will be recruited and/or forced to fight, and this needs to be assessed on the basis of up‑to‑date country of origin information, taking into account the child’s

65 It has its corollary in Article 1(b) of the Abolition of Forced Labour Convention, 1957 (No. 105), which prohibits the use of forced or compulsory labour “as a method of mobilizing and using labour for purposes of economic development.”66 ILO, Committee of Experts on the Application of Conventions and Recommendations (CEACR), CEACR: Individual Direct Request concerning Forced Labour Convention, 1930 (No. 29) Eritrea (ratification: 2000), 2010. 67 See, para 7 above.68 See, Article 8(3) ICCPR, Article 1(b) of the Abolition of Forced Labour Convention (No. 105), 1957; Article 8(1) ICCPR; and Article 6 CEDAW.69 See, Article 3 common to the four Geneva Conventions of 1949; Article 8, Rome Statute of the ICC (last amended 2010), 17 July 1998, available at: http://www.refworld.org/docid/3ae6b3a84.html.70 For example, torture or other cruel, inhuman or degrading treatment or punishment (see Article 7, ICCPR), violations of the right to security (see Article 9 ICCPR) and integrity of person (see for an interpretation Article 7, 9 and 17 ICCPR), forced or compulsory labour (see Article 8(3) ICCPR and Article 1(b) of the Abolition of Forced Labour Convention, 1957 (No. 105)) or forms of slavery (including sexual slavery, see Article 8(1) and Article 6 CEDAW).71 UNHCR Guidelines on Child Asylum Claims, see note 37 above.72 See generally, UN Committee on the Rights of the Child, CRC General Comment No. 6: Treatment of Unaccompanied and Separated Children Outside their Country of Origin, (“CRC General Comment No.6”), CRC/GC/2005/6, 1 September 2005, available at: http://www.unhcr.org/refworld/docid/42dd174b4.html, para. 59.

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profile and past experiences, as well as the experiences of similarly situated children. Importantly, in refugee claims concerning violations of the restrictions on the recruitment and participation of chil‑dren in hostilities, there is no additional requirement to consider the issue of conscientious objection.

40. Persecution may also arise from the nature of the treatment the child would be subjected to whilst in the military or armed group. In this respect, it is important to note that in addition to taking an active part in hostilities, children are also used as spies, messengers, porters, servants, slaves [including sex slaves], and/or to lay or clear landmines. Regardless of the function held by the child, they may be exposed to serious or multiple forms of harm, including being put in a position to witness heinous crimes.73

41. Persecution may also arise where there is a risk of ill‑treatment on return to the country of origin, for example, because of the child’s history of being involved with State armed forces or non‑State armed groups, whether as a soldier/combatant/fighter or in another role. They may be considered as an “enemy” by respectively the State or the non‑State armed group and as a result be at risk of retali‑ation, including physical attacks, or being ostracized by the community to such an extent that their life is intolerable. In all such cases, special consideration needs to be given to the particular vulnerabilities and best interest of child applicants.74


42. There is scope within the refugee definition to recognize both State and non‑State agents of persecution. In countries undergoing civil war, generalized violence, situations of insurgency, or State fragmentation, the threat of forced recruitment often emanates from non‑State armed groups. This may result from the State’s loss of control over parts of its territory. Alternatively, the State may empower, direct, control or tolerate the activities of non‑State armed groups [for exam‑ple, paramilitary units or private security groups]. The congruity of interests between the State and a non‑State armed group involved in forced recruitment may not always be clear. Other non‑State actors may also be the perpetrators of persecution in forms other than forced recruitment, for ex‑ample, through violence and discrimination by family members and neighbours against former child soldiers perceived as having aided the enemy.

43. In all cases involving harm by non‑State armed groups and other non‑State actors, it is necessary to review the extent to which the State is able and/or willing to provide protection against such harms.

44. Where the refugee claim is based on the risk of being forced to commit acts that violate basic rules of human conduct, it is necessary to examine the extent to which such violations are taking place, as well as the ability and/or willingness of the authorities, in particular the military authorities, to prevent future violations. Isolated breaches of jus in bello which are effectively investigated and dealt with by the military authorities will indicate the existence of available and effective State protection. State responses of this nature would involve action being taken against those responsible and measures being put in place to prevent repetition.

45. With respect to ill‑treatment by other soldiers, such as serious bullying or hazing, it is necessary to determine whether such acts are condoned by the military authorities and whether effective methods of redress are available through the military system or elsewhere in the State structure.

Amnesties

46. When a conflict ends, a State may offer amnesties to persons who evaded military service, in particular to conscientious objectors. Such initiatives may guarantee immunity from prosecution or offer official recognition of conscientious objector status, thereby removing the risk of harm associ‑ated with such prosecution or punishment. Nevertheless, the impact of an amnesty on an individual’s fear of persecution requires careful assessment. Amnesties may not cover all deserters and draft evaders. Moreover, it is necessary to examine whether the protection is effective in practice; whether the individual may still face recruitment into the armed forces; whether he or she may be subjected

73 See, note 70 above; see also UNHCR Guidelines on Child Asylum Claims, para. 23, see note 37 above.74 UNHCR Guidelines on Child Asylum Claims, paras. 4 and 5, see note 37 above, and the CRC General Comment No.6, see note 72 above.

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to other forms of persecution apart from any criminal liability quashed by the amnesty; and/or whether the person is at risk of being targeted by non‑State actors – including community groups for being considered a traitor, for example – irrespective of the legislation adopted by the State. In particular, individuals who have witnessed the commission of war crimes or other serious acts, and have deserted as a result, may be able to establish a well‑founded fear of persecution under certain circumstances if, for instance, they were required to act as witnesses in criminal proceedings upon return which would expose them to serious harm.

B. The Convention Grounds

47. As with all claims to refugee status, the well‑founded fear of persecution needs to be related to one or more of the grounds specified in the refugee definition in Article 1A (2) of the 1951 Convention; that is, it must be “for reasons of” race, religion, nationality, membership of a particular social group or polit‑ical opinion. The Convention ground needs only to be a contributing factor to the well‑founded fear of persecution; it need not be shown to be the dominant or even the sole cause. Further, one or more of the Convention grounds may be relevant; they are not mutually exclusive and may overlap.

48. The intent or motive of the persecutor can be a relevant factor in establishing the causal link between the fear of persecution and a Convention ground but it is not decisive, not least because it is often difficult to establish.75 There is no need for the persecutor to have a punitive intent to establish the causal link; the focus is rather on the reasons for the applicant’s predicament and how he or she is likely to experience the harm. Even where an individual is treated in the same way as a majority of the population this does not preclude persecution being for reasons of a Convention ground. Similarly, if the persecutor attributes or imputes a Convention ground to the applicant, this is sufficient to satisfy the causal link. Where the persecutor is a non‑State armed actor, the causal link is established either where the persecutor harms the applicant for a Convention‑related rea‑son, or the State does not protect him or her for a Convention‑related reason.76

Religion

49. The religion ground is not limited to belief systems [“theistic, non‑theistic and atheistic”],77 but covers also notions of identity, or way of life.78 It dovetails with Article 18 ICCPR and includes broader considerations of thought and conscience, including moral, ethical, humanitarian or similar views. The religion ground is thus particularly relevant in cases of conscientious objection, includ‑ing those expressed through draft evasion or desertion, as explained at III.B. With respect to claims by conscientious objectors, the UNHCR Handbook states that:

Refusal to perform military service may also be based on religious convictions. If an applicant is able to show that his religious convictions are genuine, and that such convictions are not taken into account by the authorities of his country in requiring him to perform military service, he may be able to establish a claim to refugee status. Such a claim would, of course, be supported by any additional indications that the applicant or his family may have encountered difficulties due to their religious convictions.79

50. The religion ground may also be relevant in cases based on military service other than in situations of conscientious objection. Recruits may be subject to detention, ill treatment [such as physical beat‑ings or severe psychological pressure] and serious discrimination on account of their religious beliefs, identity or practices. They may also be pressured to renounce their beliefs and convert.

Political Opinion

51. The political opinion ground is broader than affiliation with a particular political movement or ideology; it concerns “any opinion on any matter in which the machinery of the State, government,

75 UNHCR Handbook, para. 66, see note 1 above.76 See, UNHCR, Guidelines on International Protection No.2: “Membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/02/02, 7 May 2002, (“UNHCR Guidelines on Social Group”), available at: http://www.unhcr.org/refworld/docid/3d36f23f4.html, para. 23.77 UNHCR Guidelines on Religion‑Based Claims, para. 6, see note 15 above. 78 Ibid, paras. 4 and 8. 79 UNHCR Handbook, para. 172, see note 1 above.


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society, or policy may be engaged.”80 Moreover, it covers both the holding of an actual political opin‑ion and its expression, political neutrality as well as cases where a political opinion is imputed to the applicant even if he or she does not hold that view.81 The latter can arise in cases where the State, or a non‑State armed group, attributes to the individual a particular political view.

52. Cases involving objection to military service may be decided on the basis that there is a nexus with the political opinion ground in the 1951 Convention. Depending on the facts, an objection to military service ‑ especially objections based on a view that the conflict violates basic rules of human conduct [see IV. A. (ii) above] – may be viewed through the prism of actual or imputed political opinion. In rela‑tion to the latter, the authorities may interpret the individual’s opposition to participating in a conflict or in act(s) as a manifestation of political disagreement with its policies. The act of desertion or evasion may in itself be, or be perceived to be, an expression of political views.

53. The political opinion ground may be relevant in other circumstances. For instance, a refugee claim by a soldier who becomes aware of and objects to criminal activity being conducted or toler‑ated by military personnel in the context of a conflict, such as the illicit sale of weapons, extortion of civilians or trafficking of drugs or in persons, and who fears persecution as a result of his or her opposition to such activities, may be considered under the political opinion ground. Whether or not the soldier is a whistle‑blower, attempts to flee military service may be perceived by the authorities as evidence of political opposition. Objection to recruitment by non‑State armed groups may also be an expression of political opinion.

54. Political opinion may also be the applicable ground in relation to family members of a conscien‑tious objector, draft evader or deserter who is identified by the State or non‑State armed group as having an allegiance to a particular political cause. In such cases, persecution may be linked to imput‑ed political opinion, on the basis that the family member is assumed to hold similar views as those ascribed to the conscientious objector, draft evader or deserter. The relevant ground in such cases may also be “family” as a social group [see below paragraph 58].

Race or Nationality

55. Race and nationality, in the sense of ethnicity, are often factors in cases connected with military service. The well‑founded fear of persecution may be directly based on the applicant’s race, for example where conscripts from a particular racial group face harsher conditions than other recruits, or are the only ones actually subject to the draft. Similarly, children may face forced recruitment because they belong to a targeted ethnic group. Cases based on the conditions of military service arising to persecution may also relate to discrimination on the basis of race and/or ethnicity, and could invoke this ground.

Membership of a Particular Social Group

56. The 1951 Convention does not include a specific list of particular social groups. Rather, “the term membership of a particular social group should be read in an evolutionary manner, open to the diverse and changing nature of groups in various societies and evolving international human rights norms.”82 UNHCR defines a “particular social group” as:

A particular social group involves a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.83

80 UNHCR, Guidelines on International Protection No. 1: Guidelines on Gender‑Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, HCR/GIP/02/01, 7 May 2002, (“UNHCR Guidelines on Gender‑Related Persecution”), available at: http://www.unhcr.org/refworld/docid/3d36f1c64.html, para. 32, as adapted from G. Goodwin‑Gill, The Refugee in International Law, Clarendon Press 1983, 1st ed., page 31, and latest 3rd ed., Oxford University Press 2007 with J. McAdam, page 87, as also cited in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, Canada: Supreme Court, 30 June 1993, available at: http://www.refworld.org/docid/3ae6b673c.html. 81 See UNHCR, Secretary of State for the Home Department (Appellant) v. RT (Zimbabwe), SM (Zimbabwe) and AM (Zimbabwe) (Respondents) and the United Nations High Commissioner for Refugees (Intervener) ‑ Case for the Intervener, 25 May 2012, available at: http://www.unhcr.org/refworld/docid/4fc369022.html, para. 8.82 UNHCR Guidelines on Social Group, para. 3, see note 81 above.83 Ibid, para. 11.


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57. The two approaches – “protected characteristics” and “social perception” – to identifying “par‑ticular social groups” reflected in this definition are alternative, not cumulative, tests. The “pro‑tected characteristics” approach examines whether a group is connected either by an immutable characteristic, or by a characteristic that is so fundamental to human dignity that a person should not be compelled to forsake it. An immutable characteristic “may be innate [such as sex or ethnic‑ity] or unalterable for other reasons [such as the historical fact of a past association, occupation or status].”84 The “social perception” approach considers whether a particular social group shares a common characteristic which makes it cognizable or sets the group’s members apart from society at large. The latter approach does not require that the common characteristic be easily identifiable by the general public, or visible to the naked eye. An applicant need not demonstrate that all mem‑bers of a particular social group are at risk of persecution in order to establish the existence of a particular social group.85 Moreover, irrespective of which approach is adopted, a particular social group can arise even where this covers a large number of people.86 Nevertheless, everyone falling within a particular social group is not necessarily a refugee; a well‑founded fear of persecution because of membership of that group is required.

58. Under either of these approaches, “conscientious objectors” are a particular social group given that they share a belief which is fundamental to their identity and that they may also be perceived as a particular group by society. Individuals with common past experience, such as child soldiers, may also constitute a particular social group. This may also be the case for draft evaders or desert‑ers, as both types of applicants share a common characteristic which is unchangeable; a history of avoiding or having evaded military service. In some societies deserters may be perceived as a particular social group given the general attitude towards military service as a mark of loyalty to the country and/or due to the differential treatment of such persons [for example, discrimination in access to employment in the public sector] leading them to be set apart or distinguished as a group. The same may be true for draft evaders. Conscripts may form a social group characterized by their youth, forced insertion into the military corps or their inferior status due to lack of expe‑rience and low rank.

59. Women are a particular social group, defined by innate and immutable characteristics and frequently treated differently from men.87 This may be the relevant ground in claims concerning sexual violence against female soldiers or women or girls forced to act as sex slaves; although this does not preclude the application of other grounds. Girls are a sub‑set of this social group. Chil‑dren are also a particular social group, and this will be a relevant ground in cases concerning fear of forced underage recruitment.88

C. Internal Flight or Relocation Alternative

60. Where the feared persecution emanates from, or is condoned, or tolerated by the State and/or State agents, an internal flight or relocation alternative will generally not be available, as the State actors will be presumed to have control and reach throughout the country. In the case of conscientious objectors to State military service, where the State does not provide for exemption or alternative service, and where the fear of persecution is related to these laws and/or practices and their enforcement, a consideration of an internal flight or relocation alternative [IFA] would not be relevant as it can be assumed that the objector would face persecution across the country.89

61. Determining whether an IFA is available in cases where the risk of persecution emanates from non‑State armed groups, it is necessary to evaluate the ability and/or willingness of the State to protect the applicant from the harm feared. The evaluation needs to take into account whether the State protection is effective and of a durable nature, provided by an organized and

84 Ibid, para. 6. 85 Ibid, para. 17.86 Ibid, paras. 18‑19.87 UNHCR Gender‑Related Persecution Guidelines, para. 30, see note 80 above.88 UNHCR Guidelines on Child Asylum Claims, para. 48 et seq., see note 37 above.89 UNHCR Guidelines on International Protection No. 4: “Internal Flight or Relocation Alternative” within the Context of Article 1A (2) of the 1951 Con‑vention relating to the Status of Refugees, HCR/GIP/03/04, 23 July 2003, (“UNHCR Internal Flight Guidelines”), available at: http://www.refworld.org/docid/3f2791a44.html.

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stable authority exercising full control over the territory and population in question. In the particu‑lar context of non‑international armed conflict, special consideration would need to be given to the applicant’s profile, and whether he or she was recruited into and/or participated in activities of a non‑State armed group considered to be in opposition to the government, and any likely repris‑als from the government. It would often be unreasonable to expect former non‑State recruits to relocate into government‑ controlled territory in a situation of an ongoing conflict, especially if the conflict has religious or ethnic dimensions.

V. PROCEDURAL AND EVIDENTIARY ISSUES

A. Establishing the Relevant Facts

62. The credibility assessment refers to the process of determining whether, in light of all the informa‑tion available to the decision maker, the statements of the applicant relating to material elements of the claim can, on balance, be accepted as having been truthfully given for the purpose of determining refugee status eligibility. Where, notwithstanding, an applicant’s genuine efforts to provide evidence pertaining to the material facts, there remains some doubt regarding some of the facts alleged by him or her, the benefit of doubt should be given to the applicant in relation to the assertions for which ev‑identiary proof is lacking once the decision maker is satisfied with the general credibility of the claim.90

63. In claims related to military service, reliable and relevant country of origin information, including the extent to which exemption from military service or alternative service are available, the manner in which conscription is enforced, and the treatment of individuals or groups within the military forces of the country of origin, can assist in the evaluation of the truthfulness of the applicant’s account and the determination of the forms of treatment and their likelihood he or she may face if returned.91

64. Establishing the genuineness and/or the personal significance of an applicant’s beliefs, thoughts and/or ethics plays a key role in claims to refugee status based on objection to military service, in particular conscientious objection [see IV. A. (i)‑(ii)].92 The applicant needs to be given the opportu‑nity during the individual interview to explain the personal significance of the reasons behind his or her objection, as well as how these reasons impact on his or her ability to undertake military service. Eliciting information regarding the nature of the reasons espoused, the circumstances in which the applicant has come to adopt them, the manner in which such beliefs conflict with undertaking military service, as well as the importance of the reasons to the applicant’s religious or moral/ethical code are appropriate and assist in determining the credibility of the applicant’s statements.

65. Where the objection to military service is derived from a formal religion, it may be relevant to elicit information about the individual’s religious experiences, such as asking him or her to describe how they adopted the religion, the place and manner of worship, or the rituals engaged in, the significance of the religion to the person, or the values he or she believes the religion espouses, in particular, in relation to the bearing of arms. That said, extensive examination or testing of the tenets or knowledge of the individual’s religion may not always be necessary or useful, particularly as such knowledge will vary considerably depending on his or her personal circumstances. A claimant’s detailed knowledge of his or her religion does not necessarily correlate with sincerity of belief and vice‑versa.

66. Cases involving mistaken beliefs as to a particular religion’s views on the bearing of arms occur from time to time. Where mistaken beliefs are at issue, it would need to be established that the ap‑plicant, despite the mistaken beliefs, still faces a well‑founded fear of persecution for one or more of the Convention grounds.93

90 UNHCR Handbook, para. 204, see note 1 above.91 UNHCR Handbook, paras. 196 and 203‑204, see note 1 above, and UNHCR Interpreting Article 1, para. 10, see note 42 above. Note the World Survey of Conscription and Conscientious Objection to Military Service, which provides a country‑by‑country analysis, see note 28 above.92 For a general discussion of credibility issues in claims based on freedom of thought, conscience and religion see UNHCR Guidelines on Religion‑based Claims, paras. 28‑29, see note 15 above.93 Ibid, para. 30.

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67. If the claimant is mistaken about the nature of a particular conflict, such as whether the conflict abides by international law, this does not automatically undermine the credibility of the alleged reasons for objecting to military service. The credibility assessment in such situations needs to be conducted in light of the applicant’s explanations regarding why involvement in the conflict would be inconsistent with his or her religious or moral beliefs, and the reality of the situation on the ground. Nonetheless, while they may be credible in their objection, where such an objection is based on a false premise, the risk of persecution would not arise unless they face other perse‑cutory consequences for having deserted or evaded military service and a nexus to one of the Convention grounds is established.

68. For those objectors whose reasons for their objection is a matter of thought or conscience [rather than religion], they will not be able to refer to the practices of a religious community or teachings of a religious institution in order to substantiate their assertion. They should, however, be able to articulate the moral or ethical basis for their convictions. This may be based on social or community beliefs or practices, parental beliefs or on philosophical or human rights convictions. Past behaviour and experiences may shed light on their views.

69. In cases involving individuals who volunteered for military service or responded to a call up, and who subsequently desert, it is important to recognize that religious or other beliefs may develop or change over time, as may the circumstances of the military service in question. Thus, adverse judgements as to the credibility of the applicant should not generally be drawn based only on the fact that he or she initially joined the military service voluntarily; the full circumstances surround‑ing the individual’s espoused beliefs and situation need to be carefully examined.

B. Claims by Children

70. Given their young age, dependency and relative immaturity, special procedural and eviden‑tiary safeguards are required for claims to refugee status by children.94 In particular, children who spent time as soldiers/combatants/fighters or in a support role to armed groups may be suffering from severe trauma and be intimidated by authority figures. This can affect their ability to pres‑ent a clearly understandable account of their experiences. Thus, appropriate interviewing tech‑niques are essential during the refugee status determination procedure, as well as the creation of a non‑threatening interview environment.

71. In cases concerning children, a greater burden of proof will fall on the decision makers than in other claims to refugee status, especially if the child is unaccompanied.95 Given their immaturity, children cannot be expected to provide adult‑like accounts of their experiences. If the facts of the case cannot be ascertained and/or the child is incapable of fully articulating his or her claim, a de‑cision must be made on the basis of all known circumstances.

72. Age assessments may be particularly important in claims to refugee status based on military service where the age of the applicant is in doubt. This is the case not just with claims regarding conscription but also where a child considers him or herself to have “volunteered”, given the limits on voluntary service set by international law [see III.B. above]. Age assessments, which may be part of a comprehensive assessment that takes into account both the physical appearance and the psychological maturity of the individual, are to be conducted in a safe, child‑ and gender‑sensitive manner with due respect for human dignity.96 Where the assessment is inconclusive, the applicant must be considered a child. Prior to the assessment, an independent guardian should be appointed to advise the child on the purpose and process of the assessment procedure, which needs to be explained clearly in a language that the child understands. DNA testing should, in normal circum‑stances, only be done if permitted by law and with the informed consent of the relevant individuals.

94 For a full discussion of the minimum safeguards required see UNHCR Guidelines on Child Asylum Claims, paras. 65‑77, see note 37 above. See also ExCom, Conclusion on Children at Risk, No. 107 (LVIII), 5 October 2007, available at: http://www.unhcr.org/refworld/docid/471897232.html, para. g(viii). Whether a claimant is a child for the purposes of such safeguards will depend on the age at the date the claim to refugee status is made. 95 UNHCR Guidelines on Child Asylum Claims, para. 73, see note 37 above. 96 See further, UNHCR Guidelines on Child Asylum Claims, paras. 75‑76, see note 37 above.


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Distr. GENERAL HCR/GIP/15/11 24 June 2015 Original: ENGLISH


Prima Facie Recognition of Refugee Status

UNHCR issues these Guidelines pursuant to its mandate, as contained in the Office’s Statute, in conjunction with Article 35 of the 1951 Convention relating to the Status of Refugees and Article II of its 1967 Protocol. These Guidelines complement the UNHCR Handbook on Proce‑dures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (1979, reissued, Geneva, 2011) and the other Guidelines on International Protection.

These Guidelines, having benefited from broad consultation, are intended to provide legal inter‑pretative guidance for governments, legal practitioners, decision‑makers, as well as UNHCR staff carrying out refugee status determination under its mandate and/or advising governments on the application of a prima facie approach.

The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and the Guidelines on International Protection are available at: http://www.unhcr.org/refworld/docid/ 4f33c8d92.html.

Calls for public consultation on future guidelines will be posted at: http://www.unhcr.org/544f59896.html.



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I. INTRODUCTION

1. A prima facie approach means the recognition by a State or UNHCR of refugee status on the basis of readily apparent, objective circumstances in the country of origin or, in the case of stateless asylum‑seekers, their country of former habitual residence.1 A prima facie approach acknowledges that those fleeing these circumstances are at risk of harm that brings them within the applicable refugee definition.2

2. Although a prima facie approach may be applied within individual refugee status determination procedures (see Part III. D in these Guidelines), it is more often used in group situations, for example where individual status determination is impractical, impossible or unnecessary in large‑scale situa‑tions. A prima facie approach may also be applied to other examples of group departure, for example, where the refugee character of a group of similarly situated persons is apparent.

3. Recognizing refugee status on a prima facie basis has been a common practice of both States and UNHCR for over 60 years. Despite its common use and the fact that the majority of the world’s refu‑gees are recognized on a prima facie basis,3 there has been limited articulation of uniform standards to guide the practice. These Guidelines explain the legal basis as well as some procedural and evidentiary aspects of applying a prima facie approach. They outline standards of general application by States and by UNHCR, albeit some of those (e.g. legal decrees) are employable only by States. The Guidelines focus on group determination primarily, albeit they touch on how a prima facie approach may be ap‑plied in individual procedures at Part III. D.

A. Definition and description

4. In general, “prima facie” means “at first appearance”,4 or “on the face of it.”5 UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status describes group determination on a prima facie basis as follows:

[s]ituations have […] arisen in which entire groups have been displaced under circumstances indicating that members of the group could be considered individually as refugees. In such situations the need to provide assistance is often extremely urgent and it may not be possible for purely practical reasons to carry out an individual determination of refugee status for each member of the group. Recourse has therefore been had to so‑called “group determination” of refugee status, whereby each member of the group is regarded prima facie (i.e. in the absence of evidence to the contrary) as a refugee.6

5. Refugee status may be recognized on a prima facie basis pursuant to any of the applicable refugee definitions, including:

Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (hereinafter “1951 Convention”);7

one of the definitions in the regional refugee instruments;8

1 UNHCR, “Protection of Refugees in Mass Influx Situations: Overall Protection Framework”, 19 February 2001, EC/GC/01/4, available at: http://www.unhcr.org/3ae68f3c24.html, para. 6.2 Ivor C. Jackson, “The Refugee Concept in Group Situations” (Martinus Nijhoff, 1999), p. 3.3 UNHCR data indicates that in 2012, 1,121,952 refugees were recognized on a group basis and 239,864 were recognized individually. All refugees recognized on a group basis were recognized pursuant to a prima facie approach.4 Derived from Latin. ”A case in which there is evidence which will suffice to support the allegation made in it, and which will stand unless there is evi‑dence to rebut the allegation”: Osborn’s Concise Law Dictionary (10th edition, Thomson Sweet & Maxwell, 2005). 5 The Oxford English Dictionary (1st edition 1933, reprinted 1978, online version, available at: http://www.oed.com/view/Entry/151264?redirected‑From=prima+facie#eid).6 UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, reissued December 2011, HCR/1P/4/ENG/REV.3 (hereafter “UNHCR, Handbook”), para. 44. 7 Prima facie recognition may also apply to Palestinian refugees pursuant to Article 1D of the 1951 Convention, in circumstances where the protection or assistance of UNRWA has ceased.8 See, e.g., the extended regional refugee definitions in: Organization of African Unity (African Union), Convention Governing the Specific Aspects of Refugee Problems in Africa, 10 September 1969 (hereafter “OAU Convention”), Art. I(2); Cartagena Declaration on Refugees, adopted at the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 22 November 1984 (hereafter “Cartagena Decla‑ration”), Conclusion III(3).

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UNHCR’s Statute and refugee mandate as further developed under the authority of the United Nations General Assembly.9

The regional refugee definitions were designed to respond, in part, to large‑scale arrivals of peo‑ple fleeing from objective circumstances in their countries of origin, such as conflict, occupation, massive human rights violations, generalised violence or events seriously disturbing public order, and are thus particularly suited to forms of group recognition. While commonly associated with the refugee definition under the 1969 Organization of African Unity (African Union) Convention Governing the Specific Aspects of Refugee Problems in Africa (hereinafter “OAU Convention”),10 adopting a prima facie approach is not unique to Africa. Whichever instrument is applied, the assessment is based on the readily apparent, objective circumstances in the country of origin or former habitual residence relevant to the applicable refugee definition (II. A).

6. A prima facie approach operates only to recognize refugee status. Decisions to reject require an individual assessment.

B. Refugee status and applicable rights

7. Each refugee recognized on a prima facie basis benefits from refugee status in the country where such recognition is made, and enjoys the rights contained in the applicable convention/instrument. Prima facie recognition of refugee status is not to be confused with an interim or provi‑sional status, pending subsequent confirmation. Rather, once refugee status has been determined on a prima facie basis, it remains valid in that country unless the conditions for cessation11 are met, or their status is otherwise cancelled12 or revoked.13

8. Refugees recognized on a prima facie basis should be informed accordingly and issued with documentation certifying their status.14

C. Settings for use and situations where a prima facie approach is appropriate

9. A prima facie approach is particularly suited to situations of large‑scale arrivals of refugees. Large‑scale situations are characterised by the arrival across an international border of persons in need of international protection in such numbers and at such a rate as to render individual deter‑mination of their claims impracticable.15

10. A prima facie approach may also be appropriate in relation to groups of similarly situated indi‑viduals whose arrival is not on a large‑scale, but who share a readily apparent common risk of harm. The characteristics shared by the similarly situated individuals may be, for example, their ethnicity, place of former habitual residence, religion, gender, political background or age, or a combination thereof, which exposes them to risk.

9 UNHCR, “Note on the Mandate of the High Commissioner for Refugees and his Office”, October 2013, p. 3, which summarizes UNHCR’s mandate for refugees as covering “all persons outside their country of origin for reasons of feared persecution, conflict, generalized violence, or other circum‑stances that have seriously disturbed public order and who, as a result, require international protection.”10 OAU Convention, Art. 1.11 See UNHCR, “The Cessation Clauses: Guidelines on their Application”, 26 April 1999, available at: http://www.refworld.org/cgi‑bin/texis/vtx/rwmain?docid=3c06138c4, para. 2, and UNHCR, “Guidelines on International Protection No. 3: Cessation of Refugee Status under Article 1C (5) and (6)”, 10 February 2003, HCR/GIP/03/03, available at: http://www.refworld.org/docid/3e50de6b4.html (hereafter “UNHCR, Cessation Guidelines”), para. 1.12 See UNHCR, “Note on the Cancellation of Refugee Status”, 22 November 2004, available at: http://www.refworld.org/cgi‑bin/texis/vtx/rwmain?‑docid=41a5dfd94 (hereafter “UNHCR, Note on Cancellation”), para. 1(i).13 See UNHCR, “Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”, 4 September 2003, HCR/GIP/03/05, available at: http://www.unhcr.org/3f7d48514.html (hereafter “UNHCR, Article 1F Exclusion Guidelines”), para. 6.14 Executive Committee, (hereafter “ExCom”) Conclusion No. 8 (XXVIII), 12 October 1977 on the Determination of Refugee Status, available at: http://www.unhcr.org/3ae68c6e4.html, para (v). 15 UNHCR, “Guidelines on the Application in Mass Influx Situations of the Exclusion Clauses of Article 1F of the 1951 Convention relating to the Sta‑tus of Refugees”, 7 February 2006, available at: http://www.refworld.org/docid/43f48c0b4.html (hereafter “UNHCR, Mass Influx Exclusion Guide‑lines”), para. 1. “Large‑scale movements” or “large‑scale arrivals” are the preferred terms for these Guidelines, although it is noted that other terms are used in other Guidelines, such as “mass influx”. There is no scientific number of persons for a situation to qualify as a “large‑scale movement” or “large‑scale arrival.” Rather such a designation is at the discretion of the State of arrival, factoring in such matters as the capacity for registration, processing as well as assistance to respond, also related to the speed and daily or monthly rates of arrivals.

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11. A prima facie approach may be employed in urban, rural as well as camp or out‑of‑camp settings.

12. A prima facie approach may not be appropriate in all of the aforementioned situations, taking into account security, legal or operational factors. Alternative protection responses may be more suited to the situation at hand, such as screening or other procedures (e.g. temporary protection) and, in some circumstances, individual status determination.16


A. Readily apparent, objective circumstances

13. Prima facie recognition is based on readily apparent, objective circumstances in the country of origin or former habitual residence assessed against the refugee definition being applied to that sit‑uation.

14. In determining the appropriate instrument pursuant to which to recognize refugee status on a prima facie basis, the 1951 Convention criteria should generally be considered first as the universal and primary legal instrument for refugees, unless there are good reasons for doing otherwise.17

15. In respect of the 1951 Convention definition, where there is evidence of persecution against an entire group on account of a 1951 Convention ground, refugee status should be recognized pursuant to the 1951 Convention. An individualized assessment of the element of fear would normally be ren‑dered unnecessary in such circumstances, as being on its face self‑evident from the event or situation which precipitated the flight.

16. As for the regional refugee definitions, persons may be alternatively or additionally recognized under the extended refugee definitions in the OAU Convention or the Cartagena Declaration.18 In such instances, States regularly agree on the “refugee‑producing” character of certain situations and apply a prima facie approach.

17. Country information will play an important role in identifying the readily apparent circum‑stances that underlie a decision to recognize refugee status on a prima facie basis.19 Such infor‑mation should be relevant, current and from reliable sources. At the same time, the complexity of events in the country of origin or former habitual residence may result, at least initially, in scant or conflicting information. Because of its international protection mandate, including its supervisory responsibility,20 field presence and operational activities, UNHCR is often uniquely placed to ob‑tain first‑hand information on the causes and motivations of flight. UNHCR has a long established practice of recommending to governments the application of a prima facie approach to given situations. Where information is uncertain or the situation is fluid, other protection responses (such as temporary protection, see II. E. below) may be appropriate in these early stages before activating a prima facie approach

16 Any alternative protection response is without prejudice to and should not undermine the protection regime established by the 1951 Convention or other legal instruments to which the State is a party. See II. E on temporary protection or stay arrangements. 17 See UNHCR, “Summary Conclusions on International Protection of Persons Fleeing Armed Conflict and Other Situations of Violence; Roundtable 13 and 14 September 2012, Cape Town, South Africa”, 20 December 2012, para. 6, available at: http://www.refworld.org/docid/50d32e5e2.html. In the Summary Conclusions, it was noted that some States have adopted different practices: some States have adopted the recommended sequential approach in which an assessment on the basis of the criteria of the 1951 Convention refugee definition precedes the application of one of the extended definitions; other States have adopted a “nature of flight” approach, in which the prevailing situation in the country of origin (for example, an armed conflict) would lead to an initial application of an extended definition, rather than the 1951 Convention refugee definition; and other situations have called for a pragmatic approach, in which an extended definition is applied for reasons of efficiency and ease (para. 31).18 See para. 5 of these Guidelines. 19 See, generally, UNHCR, “Country of Origin Information: Towards Enhanced International Cooperation”, February 2004, available at: http://www.refworld.org/docid/403b2522a.html, para 14. 20 See UNHCR, “Note on the Mandate”.

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B. Evidence to the contrary

18. A prima facie approach, once in place, applies to all persons belonging to the beneficiary class, unless there is evidence to the contrary in the individual case. Evidence to the contrary is informa‑tion related to an individual that suggests that he or she should not be considered as a refugee – either because he or she is not a member of the designated group or, although being a member, should not be determined to be a refugee for other reasons (e.g. exclusion).

19. Examples of evidence to the contrary include, but are not limited to information, that the ap‑plicant:

i. is not from the designated country of origin or former habitual residence or does not possess the shared characteristic underlying the designated group’s constitution;

ii. did not flee during the designated time period;

iii. left for other, non‑protection reasons unrelated to the situation/event in question and has no sur place claim;

iv. has/had taken up residence in the country of asylum and is recognized by the competent au‑thorities as having the rights and obligations attached to the possession of nationality of that country (Article 1E, 1951 Convention);21

v. may fall within the exclusion clauses in Article 1F of the 1951 Convention or of the relevant regional instruments.22

20. For reasons of legal certainty, any evidence to the contrary ought to be recorded and assessed as soon as possible after arrival. Such information may come to light, for example, during registra‑tion (see III. B. below). Where contrary evidence comes to light during registration, various case management strategies may need to be instituted (see III. B. below). As noted above at paragraph 6, a prima facie approach operates only to recognize refugee status. Decisions to reject require an individual assessment.

21. Contrary evidence that already existed at the time of recognition may only emerge after the recognition of refugee status, in which case cancellation procedures would be initiated.23

C. Dealing with combatants or armed elements

22. Owing to the civilian and humanitarian character of asylum, combatants and other armed elements are not eligible for international protection, until it has been established that they have genuinely and permanently renounced military or armed activities.24 In the context of large‑scale movements as a result of armed conflict, combatants and other armed elements should be identified early and separated from the civilian population through a careful screen‑ing mechanism.25 Even if they have genuinely and permanently renounced their military or armed activities and thus become eligible to apply for refugee status, a full individual examina‑tion of their refugee claim is generally required (in particular because of the possible involve‑ment in excludable acts).26

21 UNHCR, “Note on the Interpretation of Article 1E of the 1951 Convention relating to the Status of Refugees”, March 2009, available at: http://www.refworld.org/pdfid/49c3a3d12.pdf. 22 UNHCR, “Article 1F Exclusion Guidelines”.23 See UNHCR, “Note on Cancellation”.24 ExCom, “Civilian and Humanitarian Character of Asylum”, 8 October 2002, Conclusion No. 94 (LIII), available at: http://www.unhcr.org/3dafdd7c4.html, para. (c)(vii) (hereafter “ExCom Conclusion No. 94”). 25 Ibid. para. (c)(iii).26 UNHCR, “Article 1F Exclusion Guidelines”, para. 15; restated in UNHCR, “Operational Guidelines on Maintaining the Civilian and Humanitarian Character of Asylum” September 2006, available at: http://www.refworld.org/docid/452b9bca2.html, p. 33 (hereafter “UNHCR, Operational Guide‑lines on Maintaining the Civilian and Humanitarian Character of Asylum”).

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23. Special procedures would need to be in place for children who formerly took part in armed activities.27

24. Civilian family members of combatants can benefit from refugee status on a prima facie basis unless there is evidence to the contrary in the individual case.28

D. Sur place claims

25. Persons who departed their country of origin or former habitual residence prior to the situation/event giving rise to a prima facie approach may also benefit from a declaration of refugee status on a prima facie basis.29 Should he or she have taken up residence in the country of asylum and be recog‑nized by the competent authorities as having the rights and obligations attached to the possession of nationality of that country, Article 1E of the 1951 Convention may apply (see para. 19).

E. Relationship with temporary protection or stay arrangements

26. Refugee status on a prima facie basis is to be distinguished from forms of temporary protection or stay arrangements. Such arrangements have a long history as an emergency response to large‑scale movements of persons in need of international protection, providing protection from refoulement and appropriate treatment in accordance with international human rights standards.30 They are not intended to substitute for existing protection mechanisms (such as prima facie recognition), and are more commonly applied in non‑States parties or as regional approaches to particular crises in regions with few States parties to the relevant international and regional refugee instruments.31

27. In certain scenarios, it may be appropriate to apply a temporary protection or stay arrangement, as a prelude to a prima facie approach or at its end, even in States parties to the relevant instruments. In fluid or transitional contexts, such as at the beginning of a crisis where the exact cause and char‑acter of the movement is uncertain and hence a decision on prima facie recognition cannot be taken immediately, or at the end of a crisis, when the motivation for ongoing departures may need further assessment, a temporary protection or stay arrangement could be the appropriate response.32

F. Cessation

28. While Articles 1C(1)‑(4) apply based on an individual’s own actions, the “ceased circumstances” clauses in Article 1C(5)‑(6) of the 1951 Convention (“general cessation”) are widely activated by States to apply to refugees recognized on a prima facie basis.33 In respect of the latter, while all recognized refugees who fall within the terms of a declaration of general cessation lose their refugee status auto‑matically once the cessation declaration comes into effect, they must be given the possibility prior to the effective date to apply for an exemption from cessation (“exemption procedures”). Even though the general circumstances may have ceased to exist, a certain number of refugees may continue to have a well‑founded fear of persecution either in relation to past or new circumstances, or have compelling reasons arising out of past persecution justifying their continued need for international protection.34

27 UNHCR, “Operational Guidelines on Maintaining the Civilian and Humanitarian Character of Asylum”, Part 2J; UNHCR, “Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees”, 22 December 2009, HCR/GIP/09/08 , available at: http://www.refworld.org/docid/4b2f4f6d2.html para. 51; UNHCR, “Guidelines on International Protection No. 10: Claims to Refugee Status related to Military Service within the context of Article 1A (2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees”, 3 December 2013, HCR/GIP/13/10/Corr. 1, available at: http://www.refworld.org/docid/529ee33b4.html, paras. 12, 37–41. 28 ExCom Conclusion No. 94, para. (c)(vi).29 UNHCR, Handbook, paras. 94–96.30 UNHCR, “Guidelines on Temporary Protection or Stay Arrangements”, February 2014, available at: http://www.refworld.org/docid/52fba2404.html (hereafter “UNHCR, Guidelines on Temporary Protection or Stay Arrangements”). The Guidelines identify four situations in which temporary protection or stay arrangements may be appropriate, at para. 9: (i) large‑scale arrivals of asylum‑seekers or other similar humanitarian crises; (ii) complex or mixed cross‑border population movements, including boat arrivals and rescue‑at‑sea scenarios; (iii) fluid or transitional contexts; or (iv) other exceptional and temporary conditions in the country of origin necessitating international protection and which prevent return in safety and dignity. 31 UNHCR, “Guidelines on Temporary Protection or Stay Arrangements”, paras. 3 and 8. 32 Ibid., para. 9(iii).33 UNHCR, “Cessation Guidelines”, para 23.34 UNHCR, “Guidelines on Exemption Procedures in respect of Cessation Declarations”, December 2011, available at: http://www.refworld.org/do‑cid/4eef5c3a2.html.

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III. EVIDENTIARY AND PROCEDURAL ASPECTS

29. The decision to adopt a prima facie approach rests on an assessment, by the relevant authority in the country of asylum or, acting under its mandate, by UNHCR, that the readily apparent, objec‑tive circumstances in the country of origin or former habitual residence causing persons to leave (or stay outside their country) satisfies the applicable refugee definition. It is standard practice to consult with UNHCR at the activation and ending of a prima facie approach and to strive for regional coherence.

A. Formal decision regulated by law

30. The decision to adopt a prima facie approach is to be made in accordance with the national legal framework. Different States have adopted various ways to recognize refugee status on this basis, the most common being by decision of the executive, such as the relevant government min‑istry or by presidential or cabinet decision. It is also possible that such a decision is taken by the parliament or the administrative authority responsible for refugee affairs in the country of asylum carrying out regular refugee status determination. In each case, the entity needs to have the legal authority to do so. The decision may take the form of a published declaration, decree or order (for the purposes of these Guidelines, hereinafter “Decision”).35

31. The Decision would generally specify the following:

i. the applicable domestic law that provides the authority for declaring a prima facie approach;

ii. the title of the 1951 Convention or regional instrument pursuant to which refugee status is recognized, along with the rights and duties accompanying this status;

iii. a description of the events/circumstances in the country of origin or former habitual residence underlying the Decision, or the characteristics of the class of beneficiaries to whom the ap‑proach applies;

iv. periodic review and modalities of termination.

32. Sample Decisions covering the two distinct situations described in paragraphs 9–10 are at‑tached as Annexes A and B to these Guidelines.

33. In accordance with its mandate, UNHCR has the authority to declare persons to be refugees, based on a prima facie determination. States are required to cooperate with UNHCR in the exer‑cise of its functions to provide international protection and to find solutions, together with Gov‑ernments and other relevant actors, for refugees.36

B. Identification and registration

34. Registration procedures are key to the application of a prima facie approach and are the prin‑cipal way in which individuals are identified within group‑based processing.37 Registration proce‑dures aim both to ensure persons are appropriately identified so as to benefit from the prima facie approach as well as to channel those for whom further individualised inquiries may be required.

35 Executive authorities have, at times, decided to recognize refugees on a prima facie basis without issuing a formal Decision and instead have informed UNHCR of such Decision by way of a letter. While UNHCR welcomes being formally notified of the Decision to recognize refugee status on a prima facie basis, this should be in addition to the more formal procedures described in the text at paras. 30–31. 36 UNHCR, “Note on the Mandate”, pp. 3–4. See 1951 Convention, Art. 35; 1967 Protocol, Art. II, as well as Cartagena Declaration, Conclusion II(2); OAU Convention, Art. VIII(1); and Treaty on the Functioning of the European Union, 13 December.2007, OJ C 115/47 of 9.05.2008, Art. 78 (1) per general reference to 1951 Convention; Declaration 17 of the Treaty of Amsterdam, Declaration on Article 73k of the Treaty establishing the European Community, OJ C 340/134 of 10.11.1997; EU Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status, OJ L 326/13 of 13.12.2005, Art. 21. 37 See UNHCR ExCom, “Registration of Refugees and Asylum‑Seekers”, 5 October 2001, Conclusion No. 91 (LII), available at: http://www.unhcr.org/3bd3e1d44.html, para. (a).

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While noting that the type and extent of data collected will vary depending on the situation,38 the aim of registration as part of applying a prima facie approach would be to capture sufficient information on the individual and members of his/her family to determine their membership in the beneficiary class. Appropriate questions to identify any contrary evidence, including potentially excludable indi‑viduals, should also be included during the registration process.39 Registration should ordinarily occur as soon as possible after arrival.40

35. Where there are indications of evidence to the contrary, persons need to be referred to a more enhanced registration process to gather more information. Where questions remain, the individual needs to be referred to regular refugee status determination procedures to assess adequately issues such as credibility and/or exclusion. In the event that regular status determination procedures are not operational, an assessment of the contrary evidence may need to be delayed, while making sure that the information is clearly recorded within the registration system. This will have the benefit of facili‑tating a review of eligibility for refugee status or possible cancellation at a later stage, when individual processing becomes feasible and/or operational.41 In the meantime, such persons should benefit from an alternative form of stay.

C. Decision to end the prima facie approach and to revert to regular individual status determination

36. A prima facie approach remains appropriate as long as the readily apparent circumstances prevail‑ing in the country of origin or former habitual residence continue to justify a group‑based approach to refugee status. The decision to adopt a prima facie approach, therefore, needs to be kept under peri‑odic review, such that the on‑going use of the practice is deliberative. Likewise, through registration, the profile of individuals and their reasons for flight can be monitored on a continual basis.

37. When circumstances change, careful consideration of ending the prima facie approach needs to be undertaken. Such reviews are guided by the situation in the country of origin, while recognizing the need for consistency and stability in refugee status approaches.42

38. As with the decision to recognize refugee status on a prima facie basis, the decision to end this approach rests with the relevant authority in the country of asylum. The decision to end the prima facie approach is to be communicated in the same manner (that is, via declaration, decree or order) as the initial decision to implement the prima facie approach, stating the end date. It should be made clear in such a decision, as well as through public communication and outreach, that the ending of the prima facie approach does not affect the refugee status of those who have already been recognized under this approach (their status would cease only in accordance with Article 1C of the 1951 Conven‑tion, see II. F). Equally, such a decision does not affect the right of asylum‑seekers to apply for asylum through individual procedures. The ending of a prima facie approach signals that the asylum system is back to normal, with refugee claims being assessed through individual refugee status determination procedures.

39. A sample of a decision to end the prima facie approach is contained in Annex C.

D. Prima facie approach within individual procedures

40. Although these Guidelines have focused on the group application of a prima facie approach, a number of States apply prima facie approaches within individual procedures. In the context of indi‑

38 UNHCR, “Handbook for Registration”, September 2003, available at: http://www.refworld.org/docid/3f967dc14.html, p. 21, 30, 32, 41 and 53 (here‑after “UNHCR, Handbook for Registration”): Registration is a systematic method of identifying, recording, verifying, updating and managing the infor‑mation on persons with the aim of protecting, documenting and assisting them (if and when necessary). Registration is also a starting and fundamental step for the search of durable solutions.39 See UNHCR, “Mass Influx Exclusion Guidelines”, paras. 51–53. See II. B of these Guidelines. 40 UNHCR, “Handbook for Registration”, p. 7. 41 See UNHCR, “Mass Influx Exclusion Guidelines”, paras. 54–55.42 UNHCR ExCom Conclusion on the Extraterritorial Effect of Refugee Status, No. 12 (XXIX), 17 October 1978, available at: http://www.refworld.org/docid/3ae68c4447.html, para (b).

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vidual procedures, a prima facie approach may also be part of simplified or accelerated processes based on the manifestly founded nature of a class of claims or on a presumption of inclusion.43 Adopting a prima facie approach in individual procedures operates to provide an “evidentiary ben‑efit”44 to the applicant in the form of accepting certain objective facts. Refugee status would be provided to those who can establish that they belong to the pre‑established “beneficiary class”, unless there is evidence to the contrary.

41. Adopting a prima facie approach in individual procedures has many advantages, not least those of fairness and efficiency. In terms of fairness, it allows like cases to be treated alike as far as deci‑sion‑makers are required to accept certain objective facts relating to the risks present in the coun‑try of origin or former habitual residence. In terms of efficiency, such an approach would generally reduce the time needed to hear cases because individuals are required to establish only that he or she (i) is a national of the country of origin or, in the case of stateless asylum‑seekers, a former habitual resident, (ii) belongs to the identified group, and/or (iii) the specified time period of the event/situation in question.45

43 It may also be known as “expedited positive” processing, or similar nomenclature.44 This evidentiary benefit was referred to as an “evidentiary shortcut” by J.‑F. Durieux, “The Many Faces of “Prima Facie”: Group‑Based Evidence in Refugee Status Determination” (2008) 25(2) Refuge 151.45 UNHCR, “Note on Burden and Standard of Proof in Refugee Claims”, 16 December 1998, available at: http://www.refworld.org/docid/3ae6b3338.html, para. 8.



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Annex A: Model Decision to adopt a prima facie approach for a large‑scale arrival

Declaration of prima facie recognition

IN EXERCISE of the powers conferred by [domestic law], the [relevant authority] declares as fol‑lows:

1. Taking effect as at [insert date], any person who fled from [country of origin] arriving in [country of asylum] on or after [date] due to [circumstances/event] is recognized as a refugee, pursuant to a prima facie basis.

2. Any person who arrived in [country of asylum] from [country of origin or, in case of stateless asy‑lum‑seekers, country of former habitual residence] prior to [date] and is unable or unwilling to return to [country of origin or former habitual residence] due to [circumstances/event] will also benefit from prima facie recognition as a refugee (recognition sur place).

3. Any such persons recognized as refugees pursuant to [Article 1A(2) of the 1951 Convention/1967 Protocol and/or regional refugee definition] and [relevant national law] shall enjoy the rights and benefits as refugees pursuant to [the 1951 Convention/regional refugee instrument, as applicable], and have duties to conform to national laws and regulations.

4. This decision to recognize refugees pursuant to a prima facie approach will be kept under periodic review and remains valid until, after due consideration of country of origin information and con‑sultation with UNHCR, it is terminated by [formal decision by relevant authority].

[signature]

[stamp]

[date]

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Annex B: Model Decision to adopt a prima facie approach for groups of similarly situated persons

Declaration on prima facie recognition for [description of the group]

IN EXERCISE of the powers conferred by [domestic law], the [relevant authority] declares as follows:

1. Taking effect as at [insert date], the following per‑sons shall be recognized as refugees on a prima facie basis:

[insert description of the group]

2. Any such persons recognized as refugees pursu‑ant to [Article 1A(2) of the 1951 Convention/1967 Protocol and/or regional refugee definition] and [relevant national law] shall enjoy the rights and benefits as refugees pursuant to [the 1951 Con‑vention/regional refugee instrument, as applicable], and have duties to conform to national laws and regulations.

3. Any decision to recognize refugees on a prima facie basis will be kept under periodic review and will remain valid until, after due consideration of country information and consultation with UN‑HCR, it is terminated by [formal decision by rele‑vant authority].

[signature]

[stamp]

[date]

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Annex C: Model decision to terminate a prima facie approach

Decision to end the prima facie recognition for [description]

IN EXERCISE of the powers conferred by [domestic law], the [relevant authority] declares as fol‑lows:

1. Decision [insert decision number and date] made by [relevant authority] to recognize refugees on a prima facie basis from [name country of origin/circumstance/event] is, after due consideration of the current situation in the country of origin and following consultation with UNHCR, terminated in accordance with [applicable national law], effective [insert date].

2. Nothing in this decision to terminate a prima facie approach removes the right of asylum‑seekers to apply for asylum or other forms of international protection within the regular status determi‑nation procedures.

3. This decision does not in any way affect the refugee status of those who have been recognized under this approach [date and number of decision declaring prima facie recognition]. They continue to be recognized as refugees until their status is ceased in accordance with Article 1C of the 1951 Convention.

[signature]

[stamp]

[date]

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Distr. GENERAL HCR/GIP/16/12 02 December 2016 Original: ENGLISH


Claims for refugee status related to situations of armed conflict and violence under Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees and the regional refugee definitions

UNHCR issues these Guidelines on International Protection pursuant to its mandate, as con‑tained in, inter alia, the Statute of the Office of the United Nations High Commissioner for Refugees, namely paragraph 8(a), in conjunction with Article 35 of the 1951 Convention relating to the Status of Refugees, Article II of its 1967 Protocol, Article VIII(1) of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, and Commitment II(e) of the 1984 Cartagena Declaration on Refugees.

These Guidelines clarify paragraph 164 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and otherwise complement the Handbook. They are to be read in conjunction with UNHCR’s other Guidelines on International Protection.

These Guidelines, having benefited from broad consultations, are intended to provide legal inter‑pretative guidance for governments, legal practitioners, decision‑makers and the judiciary, as well as UNHCR staff carrying out refugee status determination.

UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Con‑vention and the Guidelines on International Protection are available at: http://www.refworld.org/docid/4f33c8d92.html.

Calls for public consultation on future Guidelines on International Protection will be posted online at: http://www.unhcr.org/544f59896.html.

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TABLE OF CONTENTS

I. INTRODUCTION ........................................................................................................... 218

A. Scope and terminology .......................................................................................................................218

B. The relationship between the 1951 Convention/1967 Protocol refugee definition and the regional definitions, and EU subsidiary protection ...............................................................219

EU subsidiary protection ....................................................................................................................220

II. SUBSTANTIVE ANALYSIS OF ARTICLE 1A(2) OF THE 1951 CONVENTION .... 220

A. A well‑founded fear of being persecuted .......................................................................................221

Relevance of international humanitarian and criminal law .........................................................221

Relevance of derogations under international human rights law ..............................................222

Individual and group‑based risks ......................................................................................................222

Degree of risk .......................................................................................................................................223

No differential risk ...............................................................................................................................223

Forward‑looking assessment of risk ................................................................................................224

Sexual and gender‑related persecution ..........................................................................................224

Agents of persecution .........................................................................................................................225

Refugees sur place ...............................................................................................................................226

B. ‘For reasons of’ one or more Convention grounds .......................................................................226

‘For reasons of’ (causal link) ...............................................................................................................226

Convention grounds ............................................................................................................................226

C. Internal flight or relocation alternative ...........................................................................................228

III. SUBSTANTIVE ANALYSIS OF ARTICLE I(2) OF THE 1969 OAU CONVENTION .................................................................................................................. 229

A. Preliminary considerations to guide interpretation ......................................................................229

Scope of the 1969 OAU Convention definition ...........................................................................230

B. Elements of the 1969 OAU Convention definition ......................................................................230

Compelled to leave one’s place of habitual residence .................................................................230

Refugees sur place ...............................................................................................................................230

Situations compelling flight ...............................................................................................................231

C. Internal flight or relocation alternative ...........................................................................................232

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IV. SUBSTANTIVE ANALYSIS OF CONCLUSION III(3) OF THE 1984 CARTAGENA DECLARATION ...................................................................................232

A. Preliminary considerations to guide interpretation ................................................................ 232

Scope of the Cartagena refugee definition .............................................................................. 233

B. Elements of the Cartagena refugee definition ........................................................................ 233

Refugees sur place ......................................................................................................................... 234

Circumstances compelling flight ................................................................................................. 234

Threat to life, security or freedom ............................................................................................. 236

Gang violence or violence from organized criminal groups .................................................. 236

C. Internal flight or relocation alternative ..................................................................................... 236

V. PROCEDURAL AND EVIDENTIARY ISSUES .....................................................237

A. Approaches to applying the 1951 Convention/1967 Protocol definition and the regional definitions ................................................................................................................. 237

B. Establishing the facts .................................................................................................................... 237

Country of origin information ..................................................................................................... 237

Burden of proof .............................................................................................................................. 238

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I. INTRODUCTION

A. Scope and terminology

1. Situations of armed conflict and violence are today the major causes of refugee movements. The majority of these situations engender political, religious, ethnic, social, or gender persecution. The 1951 Convention relating to the Status of Refugees1 and/or its 1967 Protocol2 (1951 Convention) is directly applicable to civilians displaced by situations of armed conflict and violence.

2. The purpose of these Guidelines is to provide substantive and procedural guidance for assessing claims for refugee status involving situations of armed conflict and violence, and to promote consist‑ency in the application of the 1951 Convention and regional refugee definitions.3

3. These Guidelines provide guidance in relation to the inclusion aspects of the refugee definitions in:

• Article 1A(2) of the 1951 Convention and its 1967 Protocol (Part II of these Guidelines),

• Article I(2) of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa4 (1969 OAU Convention) (Part III of these Guidelines), and

• Conclusion III(3) of the 1984 Cartagena Declaration on Refugees (Cartagena Declaration) (Part IV of these Guidelines).5

The inclusion of the regional refugee definitions in these Guidelines concern their application to claims for refugee status related to situations of armed conflict and violence and is without prejudice to the application of these definitions to other situations.

4. These Guidelines do not address exclusion6 or cessation,7 issues related to the civilian and humani‑tarian character of asylum,8 or claims related to military service,9 for which other guidance is available. These Guidelines also do not deal with prima facie recognition of refugee status, which is covered by Guidelines on International Protection No. 11.10 However, they do deal with the relationship be‑tween the 1951 Convention refugee definition and the regional refugee definitions, including which approaches can be used in applying the various definitions (paragraphs 86 to 88 of these Guidelines). The Guidelines focus on refugee status and do not address specifically subsidiary or complementary forms of international protection.11

5. For the purpose of these Guidelines, the phrase “situations of armed conflict and violence” refers to situations that are marked by a material level or spread of violence that affects the civilian popula‑

1 Convention Relating to the Status of Refugees (28 July 1951) 189 UNTS 137 (1951 Convention), http://www.refworld.org/docid/3be01b964.html. 2 Protocol Relating to the Status of Refugees (31 January 1967) 606 UNTS 267 (1967 Protocol), http://www.refworld.org/docid/3ae6b3ae4.html. 3 For further information on the background to and reasons for developing these Guidelines, UNHCR, Summary Conclusions on International Protection of Persons Fleeing Armed Conflict and Other Situations of Violence; Roundtable 13 and 14 September 2012, Cape Town, South Africa, 20 December 2012, (“UNHCR Cape Town Summary Conclusions”), http://www.refworld.org/docid/50d32e5e2.html.4 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (10 September 1969) 1001 UNTS 45 (1969 OAU Convention),http://www.refworld.org/docid/3ae6b36018.html.5 Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 22 November 1984, (Cartagena Declaration), http://www.refworld.org/docid/3ae6b36ec.html. The 1984 Cartagena Declaration is not a treaty within the meaning of Article 1(a) of the 1969 Vienna Convention on the Law of Treaties (23 May 1969) 1155 UNTS 331. 6 UNHCR, Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Ref‑ugees, 4 September 2003, HCR/GIP/03/05, http://www.refworld.org/docid/3f5857684.html. See also, UNHCR, Guidelines on the Application in Mass Influx Situations of the Exclusion Clauses of Article 1F of the 1951 Convention relating to the Status of Refugees, 7 February 2006, http://www.refworld.org/docid/43f48c0b4.html. 7 UNHCR, Guidelines on International Protection No. 3: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (the “Ceased Circumstances” Clauses), 10 February 2003, HCR/GIP/03/03, http://www.refworld.org/docid/3e50de6b4.html.8 EXCOM Conclusion No. 94 (LIII), 2002, para. (c)(viii). UNHCR, Operational Guidelines on Maintaining the Civilian and Humanitarian Character of Asylum, September 2006, http://www.refworld.org/docid/452b9bca2.html.9 UNHCR, Guidelines on International Protection No. 10: Claims to Refugee Status related to Military Service within the context of Article 1A (2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, 3 December 2013, HCR/GIP/13/10/Corr. 1, (“UNHCR Military Service Guidelines”), http://www.refworld.org/docid/529ee33b4.html.10 UNHCR, Guidelines on International Protection No. 11: Prima Facie Recognition of Refugee Status, 24 June 2015, HCR/GIP/15/11, (“UNHCR Prima Facie Recognition Guidelines”), http://www.refworld.org/docid/555c335a4.html. 11 Paragraph 9 of these Guidelines contains a reference to the relationship between the 1951 Convention and subsidiary protection status under Euro‑pean Union (EU) law.

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tion. Such situations may involve violence between state and non‑state actors, including organized gangs,12 and violence between different groups in society. Further, such situations may include violence between two or more states, between states and non‑state armed groups, or between various non‑state armed groups. Any particular classification of an armed group, for example as criminal or political, is not necessary or determinative for the purpose of refugee status determi‑nation. Further, while in some circumstances situations of armed conflict and violence referred to in these Guidelines may be categorized as an international (IAC)13 or a non‑international (NIAC)14 armed conflict within the meaning of international humanitarian law (IHL), such categorization is not required for the purpose of refugee status determination.15 Many situations of armed conflict and violence are not designated as an armed conflict for IHL purposes, yet the means employed and their consequences may be just as violent or harmful. Other labels – such as a situation of generalized16 or indiscriminate17 violence – have also been used by decision‑makers to describe situations of armed conflict and violence. Regardless of such characterizations, the method of assessing the claim to refugee status is the same – a full and inclusive application of the refugee definition to the situation at hand is required, as is set out in these Guidelines.

B. The relationship between the 1951 Convention/1967 Protocol refugee definition and the regional definitions, and EU subsidiary protection

6. Regional refugee instruments, such as the 1969 OAU Convention and the Cartagena Declara‑tion, complement the 1951 Convention/1967 Protocol, which remain the universal and primary legal protection instruments for refugees.18 Each regional instrument incorporates the 1951 Con‑vention definition of a refugee and also elaborates so‑called broader refugee criteria (referred to as “regional definitions”). A principal purpose of both the 1969 OAU Convention and the Cartagena Declaration is to provide refugee protection in specific humanitarian situations, including large‑scale arrivals of people fleeing specific situations or circumstances in their country of origin.19

7. Certain factual scenarios may suggest the relevance and applicability of both the 1951 Conven‑tion definition and one of the regional definitions to an individual claim for refugee status and raise questions concerning which definition to apply (see paragraphs 86 to 88 of these Guidelines). In other situations, an individual may be a refugee under one of the regional definitions but not under the 1951 Convention definition, including where no causal link can be established between her or his fear of being persecuted and a Convention ground. In such circumstances, the regional defini‑tions expand the range of individuals eligible to benefit from refugee status.

8. While the two regional definitions differ slightly in wording, the types of situations or circum‑stances they refer to and are intended to cover can be largely assimilated. Further, although the re‑

12 UNHCR, Guidance Note on Refugee Claims Relating to Victims of Organized Gangs, 31 March 2010 (“UNHCR Gangs Guidance Note”), http://www.refworld.org/docid/4bb21fa02.html. 13 Common Article 2(1) of the 1949 Geneva Conventions, including the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, http://www.refworld.org/docid/3ae6b36d2.html and Article 1(4) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, (“Protocol I to the Geneva Conventions”), http://www.refworld.org/docid/3ae6b36b4.html. See also, International Committee of the Red Cross (ICRC), How is the Term “Armed Conflict” Defined in International Humanitarian Law?, March 2008, pp 1 to 3, http://www.refworld.org/do‑cid/47e24eda2.html and International Committee of the Red Cross (ICRC), International humanitarian law and the challenges of contemporary armed conflicts, October 2016, 32IC/15/11, http://www.refworld.org/docid/58047a764.html. 14 Common Article 3 of the 1949 Geneva Conventions, including the Fourth Geneva Convention, note 13 above, and Article 1 of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non‑International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609, (“Protocol II to the Geneva Conventions”), http://www.refworld.org/docid/3ae6b37f40.html. See also, International Committee of the Red Cross (ICRC) 2008, note 13 above, pp 3 to 5 and International Committee of the Red Cross (ICRC) 2016, note 13 above.15 By analogy, this is the position taken by the Court of Justice of the European Union (CJEU) with regard to the meaning of internal armed conflict in the EU Qualification Directive, in Aboubacar Diakité v. Commissaire général aux réfugiés et aux apatrides, C‑285/12, European Union: Court of Justice of the European Union, 30 January 2014, para. 23, http://www.refworld.org/docid/52ea51f54.html. The CJEU considered that ‘while [IHL] is designed, inter alia, to provide protection for civilian populations in a conflict zone by restricting the effects of wars on persons and property, it does not … provide for international protection to be granted to certain civilians who are outside both the conflict zone and the territory of the conflicting parties’. 16 See paragraph 71 to 73 of these Guidelines.17 In the European Union, in the context of international protection, the term ‘indiscriminate violence’ is used in Article 15c of the EU Qualification Directive (recast). According to the CJEU indiscriminate violence ‘implies that it may extend to people irrespective of their personal circumstances’, in Elgafaji v. Staatssecretaris van Justitie, C‑465/07, European Union: Court of Justice of the European Union, 17 February 2009, para. 34, http://www.refworld.org/docid/499aaee52.html.18 EXCOM Conclusion No. 87 (L) 1999, para. (f) and EXCOM Conclusion No. 89 (LI) 2000. See also, 1969 OAU Convention, note 4 above, ninth preambular paragraph, referring to the 1951 Convention and the 1967 Protocol as the basic and universal instrument for the protection of refugees.19 UNHCR Prima Facie Recognition Guidelines, note 10 above, para. 5.

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gional definitions are detailed, neither of the regional instruments was intended to provide an all‑en‑compassing definition for every situation in which persons are compelled to leave their countries of origin and cross an international border. As far as rights are concerned, the 1951 Convention and the regional instruments each recognize a person as a refugee and provide for 1951 Convention rights to be applied.20 Therefore, in most cases, the particular definition pursuant to which the person is recog‑nized as a refugee will not be of material consequence. For the purposes of legal certainty, however, a proper interpretation of each definition is necessary, with a sequential approach to adjudication being recommended (see paragraphs 86 to 88 of these Guidelines). Decision‑makers also need to bear in mind that the regional protection systems are intended to be implemented in a manner that comple‑ments and strengthens the 1951 Convention regime.21

EU subsidiary protection

9. The EU Qualification Directive (recast) provides for subsidiary protection that is complementary to refugee protection envisaged by the 1951 Convention/1967 Protocol.22 It applies to those who do not qualify as refugees but face a real risk of suffering serious harm, inter alia, when there is a ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’.23 Certain factual situations may give rise to an overlap between the criteria for refugee protection in accordance with the 1951 Convention and subsidiary protection. Because of the primacy of refugee protection and the limitation that subsidiary protection only applies to persons who do not qualify as refugees, claims related to situations of armed conflict and violence must first be assessed in accordance with the criteria for refugee protection. Only when the applicant does not qualify for refugee status, should the claim be assessed in accordance with the criteria for subsidiary protection.24

II. SUBSTANTIVE ANALYSIS OF ARTICLE 1A(2) OF THE 1951 CONVENTION

10. In accordance with the ordinary meaning to be given to the terms and in light of the context as well as the object and purpose of the 1951 Convention,25 Article 1A(2) applies to persons fleeing situations of armed conflict and violence. In fact, the 1951 Convention definition of a refugee makes no distinction between refugees fleeing peacetime or “wartime” persecution. The analysis required under Article 1A(2) focusses on a well‑founded fear of being persecuted for one or more of the Con‑vention grounds. The phrase, ‘persons compelled to leave their country of origin as a result of inter‑national or national armed conflicts are not normally considered refugees under the 1951 Convention or 1967 Protocol’, contained in paragraph 164 of the UNHCR Handbook needs to be understood as limited to situations where there is no causal link between a person’s well‑founded fear of being per‑secuted and a 1951 Convention ground.

20 The 1969 OAU Convention accepts the rights in the 1951 Convention as applicable to refugees recognized under the 1969 OAU Convention, see 1969 OAU Convention, note 4 above, tenth preambular paragraph and Article VIII(2). See also, M Sharpe, “The 1969 African Refugee Convention: In‑novations, Misconceptions, And Omissions”, McGill Law Journal (2012) 58, p 126 to 145. The Cartagena Declaration also accepts the rights in the 1951 Convention as applicable to refugees recognized in accordance with Conclusion III(3) and also expressly calls upon countries in the region to apply the 1969 American Convention on Human Rights for the treatment of refugees and for countries to acknowledge that reunification of families constitutes a fundamental principle, see Cartagena Declaration, note 5 above, Conclusion III(1), III(8) and III(13).21 EXCOM Conclusion No. 89 (LI), 2000 and EXCOM Conclusion No. 103 (LVI), 2005, including para. (b).22 European Union: Council of the European Union, Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third‑country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), 20 December 2011, OJ L 337; December 2011, pp 9‑26, preamble, recital 33, http://www.refworld.org/docid/4f197df02.html (“EU Qualification Directive (recast)”). The CJEU acknowledged the two distinct systems of protection in Salahadin Abdulla and Others v. Bundesrepublik Deutschland, C‑175/08; C‑176/08; C‑178/08 & C‑179/08, European Union: Court of Justice of the European Union, 2 March 2010, para. 78, http://www.refworld.org/docid/4b8e6ea22.html. See also, EXCOM Conclusion No. 103 (LVI), 2005, paras. (b), (i) and (k).23 EU Qualification Directive (recast), note 22 above, Article 2(f), according to which a “person eligible for subsidiary protection” means a third‑country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) does not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country’. Serious harm as defined in Article 15 of the EU Qualification Directive (recast) consists of: ‘(a) the death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.’24 H. N. v Minister for Justice, Equality and Law Reform, Ireland, Attorney General, C‑604/12, European Union: Court of Justice of the European Union, 8 May 2014, para. 35, http://www.refworld.org/docid/5375e84f4.html. It would be at variance with the Common European Asylum System, the Treaty of the European Union and the 1951 Convention when subsidiary protection criteria would be applied first, because, for example, of the comparatively or perceived easier task of establishing the existence of violence and conflict through generally‑available country of origin information than a well‑founded fear of being persecuted for one or more Convention grounds.25 EXCOM Conclusion No. 103 (LVI), 2005, para. (c).

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A. A well‑founded fear of being persecuted

11. Threats to life or freedom and other serious human rights violations can constitute persecution for the purposes of the 1951 Convention refugee definition.26 In addition, lesser forms of harm may cumu‑latively constitute persecution.27 Discrimination will amount to persecution where the effect leads to a situation that is intolerable or substantially prejudicial to the person concerned.28 Likewise, conduct amounting to serious violations of IHL can constitute persecution (see paragraphs 14 and 15 of these Guidelines).29 What amounts to persecution will also depend on the circumstances of the individu‑al, including the age, gender, opinions, health, feelings and psychological make‑up of the applicant.30

12. The standards mentioned in paragraph 11 above should be applied no differently in the context of persons fleeing situations of armed conflict and violence. No higher level of severity or seriousness of the harm is required for the harm to amount to persecution in situations of armed conflict and violence compared to other situations, nor is it relevant or appropriate to assess whether applicants would be treated any worse than what may ordinarily be “expected” in situations of armed conflict and violence. The overall context of a situation of armed conflict and violence can compound the effect of harms on a person, giving rise in certain circumstances to harm that amounts to persecution. Protracted situations of armed conflict and violence, for example, can have serious deleterious effects on the physical and psychological health of applicants or their personal development, which would need to be evaluated, taking into account their character, background, position in society, age, gender, and other factors.31

13. Situations of armed conflict and violence frequently involve exposure to serious human rights violations or other serious harm amounting to persecution. Such persecution could include, but is not limited to, situations of genocide32 and ethnic cleansing;33 torture and other forms of inhuman or degrading treatment;34 rape and other forms of sexual violence;35 forced recruitment, including of children;36 arbitrary arrest and detention; hostage taking and enforced or arbitrary disappear‑ances; and a wide range of other forms of serious harm resulting from circumstances mentioned, for example, in paragraphs 18 and 19 of these Guidelines.

Relevance of international humanitarian and criminal law

14. Many of the aforementioned human rights violations and other serious harm may also consti‑tute war crimes when committed in the context of and associated with an armed conflict within the meaning of IHL, and/or, crimes against humanity when part of a widespread or systematic attack against a civilian population.37 Deportations and forcible transfer or displacement, sometimes in the form of ethnic cleansing or genocide, can also amount to war crimes when committed in the context of and associated with an armed conflict within the meaning of IHL, and, crimes against humanity when part of a widespread or systematic attack against a civilian population.38

26 UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011, HCR/1P/4/ENG/REV. 3, para. 51, http://www.refworld.org/docid/4f33c8d92.html (“UNHCR Handbook”). 27 Ibid., para. 53.28 Ibid., para. 54.29 UNHCR, Expert Meeting on Complementarities between International Refugee Law, International Criminal Law and International Human Rights Law: Summary Conclusions, July 2011, paras. 13‑21, (“UNHCR Arusha Summary Conclusions”), http://www.refworld.org/docid/4e1729d52.html. 30 UNHCR Handbook, note 26 above, paras. 52 and 55.31 Ibid., para. 43. UNHCR, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, 22 December 2009, HCR/GIP/09/08, para. 10, http://www.refworld.org/docid/4b2f4f6d2.html. 32 Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948) 78 UNTS 277, http://www.refworld.org/docid/ 3ae6b3ac0.html. Article 6, Rome Statute of the International Criminal Court (1 July 2002) 2187 UNTS 3, (“Rome Statute ICC”), http://www.refworld.org/docid/3ae6b3a84.html.33 Ethnic cleansing is defined as ‘a purposeful policy designed by one ethnic or religious group to remove by violent and terror‑inspiring means the civilian population of another ethnic or religious group from certain geographic areas’, UN Security Council, Report of the Commission of Experts Es‑tablished Pursuant to United Nations Security Council Resolution 780 (1992), 27 May 1994, s/1994/674, http://www.refworld.org/docid/582060704.html.34 See, inter alia, Article 7, International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 171, (ICCPR), http://www.refworld.org/docid/3ae6b3aa0.html and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984) 1465 UNTS 85, http://www.refworld.org/docid/3ae6b3a94.html.35 See paragraphs 26 and 27 of these Guidelines.36 UNHCR Military Service Guidelines, note 9 above, paras. 35 and 37 to 41 (“unlawful child recruitment”).37 Rome Statute ICC, note 32 above, Articles 7 and 8. 38 UNHCR Arusha Summary Conclusions, note 29 above, paras. 9 and 10. Please note that in the context of an international armed conflict within the meaning of IHL, evacuations may take place for security or imperative military reasons in accordance with Article 49 of Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 12 August 1949, 75 UNTS 31, http://www.refworld.org/docid/3ae6b3694.html. In the context of a non‑international armed conflict, see Article 17 of Protocol II to the Geneva Con‑ventions, note 14 above.


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15. For the purposes of determining refugee status, the existence of violations of IHL can be inform‑ative but not determinative of whether conduct amounts to persecution within the meaning of the 1951 Convention. An applicant cannot be expected to establish that there has been the commission of either an IHL violation or an international crime in order for a decision‑maker to reach a finding that a particular kind of harm constitutes persecution.39 Nor are the criteria for the crime against humanity of persecution, as defined in international criminal law,40 applicable to refugee status determination. International criminal courts and tribunals are primarily concerned with harm committed in the past for the purposes of criminal prosecution; their mandate does not cover the broader humanitarian purpose of providing international protection to civilians. Relying on IHL or international criminal law in their strictest sense to determine refugee status could undermine the international protection ob‑jectives of the 1951 Convention, and leave outside its protection persons who face serious threats to their life or freedom.41 Moreover, even if certain conduct is not prohibited under IHL or international criminal law, it does not change the fact that for international refugee law purposes, such conduct may constitute persecution.42

Relevance of derogations under international human rights law

16. States parties to relevant human rights treaties may derogate from a limited number of human rights in times of public emergency threatening the life of the nation.43 Where a lawful state of emer‑gency exists, non‑securement of derogable rights may not necessarily constitute persecution if the adopted measures are strictly required by the exigencies of the situation.44 However, to determine a claim to refugee status by an applicant who has fled such a situation, the overall circumstances of the case need to be assessed. A state of emergency may be unlawful or involve measures that are not strictly required by the exigencies of the situation or involve measures affecting non‑derogable rights.

Individual and group‑based risks

17. In situations of armed conflict and violence, an applicant may be at risk of being singled out or targeted for persecution. Equally, in such situations, entire groups or populations may be at risk of persecution, leaving each member of the group at risk.45 The fact that many or all members of particular communities are at risk does not undermine the validity of any particular individual’s claim.46 The test is whether an individual’s fear of being persecuted is well‑founded. At times, the impact of a situation of armed conflict and violence on an entire community, or on civilians more generally, strengthens rather than weakens the well‑founded nature of the fear of being persecuted of a particular individual.47 39 For example, the requirements of discriminatory intent and that the crime be part of a widespread or systematic attack against a civilian population in international criminal law are not required by international refugee law, see UNHCR Arusha Summary Conclusions, note 29 above, para. 15. 40 Rome Statute ICC, note 32 above, Article 7(1)(h).41 UNHCR Arusha Summary Conclusions, note 29 above, para. 15. 42 Such conduct may, for example, amount to serious human rights violations. International human rights law does not cease to apply during situations of armed conflict, save in part through the effect of provisions for derogation of the kind to be found, for example, in Article 4 ICCPR, note 34 above. See, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, International Court of Justice (ICJ), 8 July 1996, para. 15, http://www.refworld.org/docid/4b2913d62.html; Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice (ICJ), 9 July 2004, para. 106, http://www.refworld.org/docid/414ad9a719.html; and UN Human Rights Commit‑tee (HRC), General comment no. 31 [80], The nature of the general legal obligation imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13, para. 11, http://www.refworld.org/docid/478b26ae2.html. See also, AF (Syria), [2012] NZIPT 800388, New Zealand: Immigration and Protection Tribunal, 20 December 2012, paras. 45 to 49, http://www.refworld.org/docid/54c127434.html. 43 ICCPR, note 34 above, Article 4. Also, UN Human Rights Committee (HRC), CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency, 31 August 2001, CCPR/C/21/Rev.1/Add.11, (“HRC General Comment 29”), http://www.refworld.org/docid/453883fd1f.html, states may only derogate against specifically identified rights, and can only do so to the extent strictly required by the exigencies of the situation, must be consistent with other obligations under international law and may not be based on or result in discrimination. The measures adopted must be proportionate and of temporary duration, and the relevant human rights body needs to be notified of the derogation. At the regional level, derogation clauses are provided for in Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, Article 15, (ECHR), http://www.refworld.org/docid/3ae6b3b04.html and the Organization of American States (OAS), American Convention on Human Rights, “Pact of San Jose”, Costa Rica, 22 November 1969, Article 27, (American Convention on Human Rights), http://www.refworld.org/docid/3ae6b36510.html. 44 MS (Coptic Christians) Egypt CG v Secretary of State for the Home Department, [2013] UKUT 00611 (IAC), United Kingdom: Upper Tribunal (Immigration and Asylum Chamber), 3 December 2013, para. 120, http://www.refworld.org/docid/52a5b86e4.html. 45 The risk of harm as a result of exceptionally high levels of violence to the general population was addressed by the European Court of Human Rights in, inter alia, Sufi and Elmi v. United Kingdom, Applications nos. 8319/07 and 11449/07, Council of Europe: European Court of Human Rights, 28 June 2011, http://www.refworld.org/docid/4e09d29d2.html and L.M. and Others v. Russia, Applications nos. 40081/14, 40088/14 and 40127/14, Council of Europe: European Court of Human Rights, 15 October 2015, http://www.refworld.org/docid/561f770f4.html. 46 UNHCR, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees, April 2001, para. 20, http://www.refworld.org/docid/3b20a3914.html. 47 According to the European Court of Human Rights: ‘in relation to asylum claims based on a well‑known general risk, when information about such a risk is freely ascertainable from a wide number of sources, the obligations incumbent on the States under Articles 2 and 3 of the Convention in expul‑sion cases entail that the authorities carry out an assessment of that risk of their own motion’, see: F.G. v. Sweden, Application no. 43611/11, Council of Europe: European Court of Human Rights, 23 March 2016, para. 126, http://www.refworld.org/docid/56fd485a4.html.

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18. In situations of armed conflict and violence, whole communities may be affected by, and be at risk from, aerial bombardments, the use of cluster munitions, barrel bombs or chemical weapons, artillery or sniper fire, improvised explosive devices, landmines, car bombs or suicide bombers, or siege tactics, for example. The systematic denial of food and medical supplies, the cutting of water supplies and electricity, the destruction of property or the militarization or closure of hospitals and schools may also constitute serious human rights or IHL violations that affect whole communi‑ties.48 Exposure to such actions can amount to persecution within the meaning of Article 1A(2) of the 1951 Convention, either independently or cumulatively.

19. Both the direct and indirect consequences of situations of armed conflict and violence may also constitute persecution, including long‑term consequences of these situations, such as dem‑olition of vital infrastructure, insecurity and abject poverty. More specifically, situations of armed conflict and violence may seriously affect the rule of law as well as state and societal structures and support systems. Situations of armed conflict and violence may lead to a full or partial col‑lapse of government institutions and services, political institutions and the police and justice system. Vital services such as water, electricity and sanitation may be disrupted. Increased crime levels; looting and corruption; food insecurity, malnourishment or famine; constraints on access to education and health care; serious economic decline, destruction of livelihoods and poverty may also ensue. These consequences of situations of armed conflict and violence may be suf‑ficiently serious, either independently or cumulatively, to constitute persecution and create a well‑founded fear of being persecuted. This is also relevant where the risk of persecution ema‑nates from non‑state actors (see paragraphs 28 to 30 of these Guidelines).

20. Other factors to take into account include propaganda that may create or contribute to an oppressive atmosphere of intolerance vis‑à‑vis one or more groups, and promote or lead to a risk of persecution.49

Degree of risk

21. A person’s fear of persecution is well‑founded if it can be established, to a reasonable degree, that her or his continued stay in the country of origin has become, or would become, intolera‑ble.50 This does not require a probability calculus,51 based, for example, on the number of people killed, injured or displaced, but requires an analysis of both quantitative and qualitative informa‑tion assessed against the applicant’s circumstances (see paragraphs 89 to 92 of these Guidelines on establishing the facts).

No differential risk

22. As mentioned in paragraph 17 of these Guidelines, a person may have a well‑founded fear of persecution that is shared by many others, and of a similar or same degree.52 An applicant fleeing a situation of armed conflict and violence is not required to establish a risk of harm over and above that of others similarly situated (sometimes called a “differential test”).53 No higher level of risk is

48 Relevant criteria to assess the intensity of a conflict were formulated by the United Kingdom, Asylum and Immigration Tribunal / Immigration Appellate Authority, in: AM & AM (Armed Conflict: Risk Categories) Somalia v. Secretary of State for the Home Department, [2008] UKAIT 00091, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 27 January 2009, http://www.refworld.org/docid/4934f7542.html and repeated by the European Court of Human Rights in Sufi and Elmi v. United Kingdom, note 45 above, para. 241 and L.M. and Others v. Russia, note 45 above, para. 121.49 For example, in Rwanda in 1994, Tutsi women were portrayed in Hutu controlled media outlets as ‘seductive agents of the enemy’, thereby ‘ar‑ticulat[ing] a framework that made the sexual attack of Tutsi women a foreseeable consequence of the role attributed to them’, see The Prosecutor v. Ferdinand Nahimana, Jean‑Bosco Barayagwiza, Hassan Ngeze (Judgement and Sentence), ICTR‑99‑52‑T, International Criminal Tribunal for Rwanda (ICTR), 3 December 2003, para. 1079, http://www.refworld.org/docid/404468bc2.html. 50 UNHCR Handbook, note 26 above, para. 42.51 Immigration and Naturalization Service v. Cardoza‑Fonseca, 480 U.S. 421; 107 S. Ct. 1207; 94 L. Ed. 2d 434; 55 U.S.L.W. 4313, United States Supreme Court, 9 March 1987, http://www.refworld.org/docid/3ae6b68d10.html, in dismissing a calculus Stevens J. considered: ‘The High Com‑missioner’s analysis of the United Nations’ standard is consistent with our own examination of the origins of the Protocol’s definition, as well as the conclusions of many scholars who have studied the matter. There is simply no room in the United Nations’ definition for concluding that because an applicant only has a 10% chance of being shot, tortured, or otherwise persecuted, that he or she has no “well‑founded fear” of the event happening.’52 Surajnarain and Others v. Minister of Citizenship and Immigration, 2008 FC 1165, Canada: Federal Court, 16 October 2008, para. 17, http://www.refworld.org/docid/497f3bdc2.html. 53 Minister for Immigration and Multicultural Affairs v. Haji Ibrahim, [2000] HCA 55, Australia: High Court, 26 October 2000, http://www.refworld. org/docid/3deb737f7.html, paras. 66 and 70. The ‘differential test’ test was considered by Lord Lloyd of Berwick in R v. Secretary of State for the Home Department, Ex parte Adan, CO/872/98, United Kingdom: House of Lords (Judicial Committee), 2 April 1998, http://www.refworld.org/docid/3ae6b6c914.html. See also AM & AM (Armed Conflict: Risk Categories) Somalia v. Secretary of State for the Home Department, note 48 above, para. 72.


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required to establish a well‑founded fear of persecution in situations of armed conflict and violence compared to other situations.

23. Further, some courts have referred to a “differential risk” in order to emphasize the requirement for a causal link between the risk (i.e. well‑founded fear of persecution) and the reasons for persecution (i.e. one or more Convention grounds). However, such phrasing can lead to conflation of the risk element with the causal link requirement – addressed in paragraphs 32 and 33 of these Guidelines – and is not in keeping with a proper application of the 1951 Convention definition of a refugee.54

Forward‑looking assessment of risk

24. The 1951 Convention protects those who – at the time of the decision – are at risk of persecution in their country of origin, regardless of whether they have already suffered persecution. A decision on whether a person has a well‑founded fear of being persecuted requires a forward‑looking assess‑ment of all relevant facts of the case (see paragraphs 89 to 92 of these Guidelines). Absent a relevant change of circumstances, persons having suffered persecution in the past would be assumed to be at continued risk of persecution.55

25. When assessing the risk, it is important to take into account the fluctuating character of many contemporary situations of armed conflict and violence. Changing levels of violence or control over territories and populations are common in situations of armed conflict and violence. For ex‑ample, even if the level of violence at the time of decision‑making is relatively low, over time the situation of armed conflict and violence may change, increasing the degree of risk establishing a well‑founded fear. There may be reasons for the lower level of violence at a particular moment in time, such as when the parties are regrouping or re‑strategizing, or a temporary ceasefire has been agreed. Similarly, even if violence has not yet broken out in a particular part of the country, it may be foreseeable that the violence will spread there, taking into account the overall context and history of the situation of armed conflict and violence, the trajectory and mapping of the violence, the power dynamics at play and other conditions in the applicant’s country of origin. The effects of past violence may also still rise to the level of persecution, despite a temporary suspension of hostilities, and need to be assessed carefully. In addition, the implementation of peace and demobilization agreements may lead to new armed actors filling vacuums of power, or to the consolidation of groups composed of former members who have not disarmed and reinte‑grated into society. This also requires a detailed analysis that constantly evolves in response to local developments in the country of origin.

Sexual and gender‑related persecution

26. Sexual and gender‑based violence, including rape, human trafficking, sexual slavery and conjugal slavery/forced marriage, are common forms of persecution in many situations of armed conflict and violence.56 Sexual and gender‑based violence may be used as an unlawful and criminal tactic, strate‑gy or policy during situations of armed conflict and violence, in order to overwhelm and weaken the adversary directly or indirectly, by victimizing women and girls and/or men and boys.57 Irrespective of the motivation of the individual perpetrator, sexual and gender‑based violence may form part of a deliberate military or political strategy to debase, humiliate, terrorize or destroy civilian populations

54 Refugee Appeal No. 71462/99, Tamil and a Citizen of the Democratic Socialist Republic of Sri Lanka v. Refugee Status Branch of the New Zealand Immigration Service, 71462/99, New Zealand: Refugee Status Appeals Authority, 27 September 1999, http://www.refworld.org/docid/3ae6b73cc.html.55 UNHCR Handbook, note 26 above, para. 45.56 UNHCR, Guidelines on International Protection No. 1: Gender‑Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 7 May 2002, HCR/GIP/02/01, para. 9, (“UNHCR Gender‑Persecution Guidelines”), http://www.refworld.org/docid/3d36f1c64.html. UNHCR, Guidelines on International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 23 October 2012, HCR/GIP/12/01, para. 20, (“UNHCR Sexual‑Orientation and/or Gender Identity Guidelines”), http://www.refworld.org/docid/50348afc2.html. Rape, for example, was considered a serious human rights violation constituting persecution in: SS (Adan – Sexual Violence – UNHCR Letter) Burundi v. Secretary of State for the Home Department, CG [2004] UKIAT 00290, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 29 October 2004, para. 16, http://www.refworld.org/docid/46836b180.html. UN Secretary‑General (UNSG), Sexual violence in conflict: report of the Secretary‑General, 14 March 2013, A/67/792‑S/2013/149, (“UNSG Report sexual violence in conflict”), http://www.refworld.org/docid/5167bd0f4.html.57 See, for example, Prosecutor v. Issa Hassan Sesay, Morris Kallon and Augustine Gbao (the RUF accused) (Trial judgment), Case No. SCSL‑04‑15‑T, Special Court for Sierra Leone, 2 March 2009, para. 1347, http://www.refworld.org/docid/49b102762.html. In re B (FC) (Appellant) (2002). Regina v. Special Adju‑dicator, Ex parte Hoxha (FC), [2005] UKHL 19, United Kingdom: House of Lords (Judicial Committee), 10 March 2005, para. 30, http://www.refworld.org/docid/423ec7784.html. Security Council, Security Council resolution 2106 (2013) [on sexual violence in armed conflict], 24 June 2013, S/RES/2106 (2013), para. 1, http://www.refworld.org/docid/51d6b5e64.html.

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in pursuit of broader goals, or rooted in gender‑related and other forms of discrimination, thus linking it to one or more of the Convention grounds.58

27. For many victims of sexual and gender‑based violence, torture and other acts of bodily harm and psychological trauma, the harm may continue long after the initial violent act was committed and the situation of armed conflict and violence has ended. They may be at risk of repeated harm59 and/or the psychological consequences of their experiences may themselves amount to persecu‑tion,60 in particular when people have suffered from particular egregious harm that makes return to the country of origin intolerable even if there is no future risk of further harm.61

Agents of persecution

28. In a situation of armed conflict and violence, persecution may emanate from state or non‑state actors, and from one or more sides involved in the situation of armed conflict and violence.62 Refu‑gee status can be warranted in the case of persons at risk of harm from actors on both or all sides of these situations. Agents of persecution may include the state’s armed forces, its law enforcement agents or security forces or other state organs or groups, and individuals for whom the state is responsible or whose conduct can be attributed to the state.63 The state may empower, direct, con‑trol, support or tolerate the activities of so‑called non‑state actors, such that their actions can in some instances be attributable to the state.64 Agents of persecution also include non‑state actors such as paramilitary groups, militias, insurgents, bandits, pirates, criminal gangs or organizations,65 terrorist organizations, private military or security companies, or other groups or individuals en‑gaging in situations of armed conflict and violence. An analysis of these actors should take into ac‑count that their character may shift from one of these categories to another or defy categorization altogether. Non‑state actors may also include neighbours, family members and other individuals.

29. In many situations of armed conflict and violence, the division between state and non‑state actors is not always clear, especially as power shifts, situations overlap and alliances change, or where non‑state actors penetrate or corrupt state institutions and/or law enforcement agencies or the state’s armed forces.66 The uncertainty during an attempted, ongoing or successful coup d’état, for example, can also blur such distinctions. However, it is not crucial to determine precisely from whom the feared harm may emanate; as long as a threat is established, it will be sufficient for de‑termining a well‑founded fear of persecution.

30. In cases involving non‑state actors or unidentified actors, it is necessary to review the extent to which the state is able and/or willing to provide protection against persecution.67 The particu‑larities of the situation of armed conflict and violence will be relevant, since the state may be prevented from extending protection to affected populations, for example in cases where it has lost control over its territory and population or where such control is fluid or uncertain. In such situations, the state may also be unwilling to extend protection.

58 UNHCR Cape Town Summary Conclusions, note 3 above, paras. 25 and 26. UNSG Report sexual violence in conflict, note 56 above, para. 5. 59 Matter of A‑T‑, 25 I&N Dec. 4 (BIA 2009), United States Board of Immigration Appeals, 4 June 2009, http://www.refworld.org/docid/4a293b4a2.html. Bah v. Y‑, Diallo v. Department of Homeland Security, Diallo v. Department of Homeland Security, 529 F.3d 99, 103 (2d Cir. 2008), United States Court of Appeals for the Second Circuit, 11 June 2008, http://www.refworld.org/docid/48d8a32c2.html. 60 In re B (FC) (Appellant) (2002). Regina v. Special Adjudicator, Ex parte Hoxha (FC), note 57 above, para. 36, in which Baroness Hale of Richmond considered: ‘[t]o suffer the insult and indignity of being regarded by one’s own community as ‘dirty like contaminated’ because one has suffered the gross ill‑treatment of a particularly brutal and dehumanising rape … is the sort of cumulative denial of human dignity which … is quite capable of amounting to persecution.’ 61 In re Y‑T‑L‑, 23 I&N Dec. 601 (BIA 2003), United States Board of Immigration Appeals, 22 May 2003, p 607, http://www.refworld.org/docid/40449fa94.html. Khadija Mohammed v. Alberto R. Gonzales, Attorney General; Khadija Ahmed Mohamed v. Alberto R. Gonzales, Attorney General, A79‑257‑632; 03‑72265; 03‑70803, United States Court of Appeals for the Ninth Circuit, 10 March 2005, pp 3085 to 3086, http://www.refworld.org/docid/423811c04.html. UNHCR, UNHCR intervention before the House of Lords in the case of Zainab Esther Fornah (Appellant) v. Secretary of State for the Home Department (Respondent), 14 June 2006, para. 24(2), http://www.refworld.org/docid/45631a0f4.html. 62 UNHCR Handbook, note 26 above, para. 65.63 International Law Commission, Articles on the Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commis‑sion, 2001 Vol.II (Part Two), http://www.refworld.org/docid/3ddb8f804.html. See also: UNGA Res. 56/83, 12 December 2001; UNGA Res. 59/35, 2 December 2004; and UNGA Res. 71/133, 13 December 2016. In accordance with Article 10 of the aforementioned Articles, the conduct of an insurrectional movement or other movement shall be considered an act of state under international law, when the movement becomes the new government or when it succeeds in establishing a new state in part of the territory of a pre‑existing state or in a territory under its administration. 64 Ibid., Articles 8 and 9. UNHCR Military Service Guidelines, note 9 above, para. 42.65 UNHCR Gangs Guidance Note, note 12 above, para. 4.66 See, for example, UNHCR, Country of Origin Series: Guatemala: Background Paper, October 2013, RBA/COI/GUA/13/01, p. 11, http://www.ref‑world.org/docid/53832fe84.html.67 UNHCR Military Service Guidelines, note 9 above, para. 43.

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Refugees sur place

31. A well‑founded fear of persecution may arise after an applicant has left her or his country of origin, owing to circumstances arising in the country of origin during the applicant’s absence, and/or as a re‑sult of her or his own actions after s/he has left the country of origin, making the applicant a refugee sur place.68 In the context of claims for refugee status related to situations of armed conflict and vio‑lence, a person may become a refugee sur place owing, for example, to the outbreak of a situation of armed conflict and violence, the intensification of a pre‑existing but latent situation of armed conflict and violence in her or his country of origin,69 or because she or he has expressed objections or taken a stance against the situation of armed conflict and violence.

B. ‘For reasons of’ one or more Convention grounds

‘For reasons of’ (causal link)

32. The intent or motive of the persecutor can be a relevant factor in establishing the causal link be‑tween the fear of persecution and a 1951 Convention ground. However, the intent or motive of the persecutor is not necessary or decisive, not least because it is often difficult to establish,70 in particular in situations of armed conflict and violence. A causal link may also be established by the strategies, tactics or means and methods of warfare of the persecutor, by the inability or unwillingness of the state to provide protection, or by the effect(s) of the situation of armed conflict and violence. The question to guide decision‑makers is: do the reasons for the person’s feared predicament, within the overall context of the country, relate to a Convention ground?71

33. Situations of armed conflict and violence may be rooted in, motivated or driven by, and/or con‑ducted along lines of race, ethnicity, religion, politics, gender or social group divides, or may impact people based on these factors. In fact, what may appear to be indiscriminate conduct (i.e. conduct whereby the persecutor is not seeking to target particular individuals),72 may in reality be aimed at whole communities or areas whose inhabitants are actual or perceived supporters of one of the sides in the situation of armed conflict and violence. Rarely are modern‑day situations of armed conflict and violence characterised by violence that is not in one way or another aimed at particular populations, or which does not have a disproportionate effect on a particular population, establishing a causal link with one or more of the Convention grounds. Who belongs to or is considered or perceived to be af‑filiated with, a particular side in a situation of armed conflict and violence, is often interpreted broadly by actors during such situations – and may include a range of people, including family members of fighters as well as all those who belong to the same religious or ethnic groups or reside in particular neighbourhoods, villages or towns. A Convention ground is regularly imputed to groups of people based on their family, community, geographic or other links.73

Convention grounds

34. The reasons for fearing persecution may be multiple. One or more Convention grounds may be relevant. The grounds are not mutually exclusive and frequently overlap.74 A Convention ground need only be a contributing factor; it need not be the dominant or the sole cause of the fear of persecution.

35. Situations of armed conflict and violence are regularly rooted in, or driven by, a variety of motives, or have consequences that affect various groups. Situations of armed conflict and violence regularly

68 UNHCR Handbook, note 26 above, para. 94 to 96.69 For example, Mozambicans finding themselves in South Africa between 1980 and 1985 could be considered as refugees sur place, see South Africa: Passport Control Instruction No. 20 of 1994 – Guidelines for Refugees Status Determination of Mozambicans in South Africa, 1994, para. 5 [of the Guidelines] http://www.refworld.org/docid/3ae6b5082c.html. 70 UNHCR Handbook, note 26 above, para. 66. UNHCR Military Service Guidelines, note 9 above, para. 48.71 Refugee Appeal No. 72635/01, 72635/01, New Zealand: Refugee Status Appeals Authority, 6 September 2002, para. 168, http://www.refworld.org/docid/402a6ae14.html. J C Hathaway and M Foster, The Law of Refugee Status (Cambridge University Press, 2014), p. 376 to 379.72 Elgafaji v. Staatssecretaris van Justitie, note 17 above, para. 34.73 UNHCR, International Protection Considerations with regard to people fleeing the Syrian Arab Republic, Update IV, November 2015, para. 17, http://www.refworld.org/docid/5641ef894.html. Arrest nr. 122 129, 122 129, Belgium: Conseil du Contentieux des Etrangers, 4 April 2014, (in Dutch; cover sheet in English available), http://www.refworld.org/docid/582068524.html. 74 UNHCR Handbook, note 26 above, para. 67.


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involve a mix of ethnic, religious, societal and political dimensions, with the parties involved oper‑ating along ethnic, religious or social lines and pursuing – or perceived to be pursuing – political and/or religious goals.

36. Even where the motives and drivers behind violent or otherwise harmful conduct resulting from, or prevalent in, situations of armed conflict and violence may, at first sight, appear to be criminal or profit‑driven, they are regularly interconnected with Convention grounds.75 For in‑stance, armed groups may set up criminal enterprises to finance an ethnic, religious or political conflict, or the violence of gangs or other armed groups, including for example drug cartels, which is primarily profit‑driven, may also have the aim of consolidating or expanding the group’s powerbase in society, potentially characterizing the violence as politically motivated.76 The tar‑geting of individuals, as well as whole areas and populations, often has ethnic, religious and/or political purposes or links.

37. Expressing objections or taking a neutral or indifferent stance to the strategies, tactics or con‑duct of parties in situations of armed conflict and violence, or refusing to join, support, financially contribute to, take sides or otherwise conform to the norms and customs of the parties involved in the situation may – in the eyes of the persecutor – be considered critical of the political goals of the persecutor, or as deviating from the persecutor’s religious or societal norms or practices.77 Such objections, stances or behaviours may indicate or create the perception in the eyes of the persecutor that the person holds a political opinion or religious (or non‑)belief, having an affiliation with or belonging to an ethnic or social group.

38. Persons pursuing certain trades, professions or occupations may be at risk for reasons of, for example, their real or perceived political opinion or religious (or non‑)belief.78 Their activities, role or status within society that follows from, or is associated with, their trade, profession or occupa‑tion, may be regarded as a real or perceived opinion on a matter in which the machinery of state, government, society or policy may be engaged,79 in particular, in a country in conflict. For instance, journalists and other media professionals, and human rights and rule of law defenders, may report factually or critically on the conduct of certain actors, medical professionals treating opposition fighters may be seen as supporting the opposition, humanitarian workers continuing with their humanitarian work may be perceived as assisting the “enemy”,80 and religious leaders may side, or be seen to be siding, with one of the parties.

39. Claims involving gender‑related persecution may be analysed under any of the Convention grounds, i.e. in relation to real or perceived political opinion, ethnicity81 and/or religion or social group (gender).82

75 Refugee Appeal No. 76289, No. 76289, New Zealand: Refugee Status Appeals Authority, 8 May 2009, para. 43, http://www.refworld.org/do‑cid/4a2e2a5e2.html. Emilia Del Socorro Gutierrez Gomez v. Secretary of State for the Home Department, 00/TH/02257, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 24 November 2000, paras. 43, 44, 50, 51 and 73(XI), http://www.refworld.org/do‑cid/40487df64.html. Osorio v. Immigration and Naturalization Service, 18 F.3d 1017: 1994 U.S. App. LEXIS 4170, United States Court of Appeals for the Second Circuit, 7 March 1994, http://www.refworld.org/docid/3ae6b70e7.html.76 See, for example, NS (Social Group – Women – Forced Marriage) Afghanistan v. Secretary of State for the Home Department, CG [2004] UKIAT 00328, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 30 December 2004, para. 69, http://www.refworld.org/do‑cid/42c928984.html; and Emilia Del Socorro Gutierrez Gomez v. Secretary of State for the Home Department, note 75 above, para. 40.77 RT (Zimbabwe) and others v Secretary of State for the Home Department, [2012] UKSC 38, United Kingdom: Supreme Court, 25 July 2012, para. 42, http://www.refworld.org/docid/500fdacb2.html. UNHCR, Secretary of State for the Home Department (Appellant) v. RT (Zimbabwe), SM (Zimbabwe) and AM (Zimbabwe) (Respondents) and the United Nations High Commissioner for Refugees (Intervener) ‑ Case for the Intervener, 25 May 2012, 2011/0011, para. 10, http://www.refworld.org/docid/4fc369022.html. Souad Noune v Secretary of State for the Home Department, C 2000/2669, United King‑dom: Court of Appeal (England and Wales), 6 December 2000, Schiemann LJ, paras. 8(5) and 28(5), http://www.refworld.org/docid/558bcbad4.html.78 M Foster, The ‘Ground with the Least Clarity’: A Comparative Study of Jurisprudential Developments relating to ‘Membership of a Particular Social Group’, August 2012, UNHCR PPLA/2012/02, chapter 5.7.3, http://www.refworld.org/docid/4f7d94722.html. Emilia Del Socorro Gutierrez Gomez v. Secre‑tary of State for the Home Department, note 75 above, para. 46. 79 G S Goodwin‑Gill and J McAdam, The Refugee in International Law (Oxford: Oxford University Press, 2007), p. 87. Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, Canada: Supreme Court, 30 June 1993, http://www.refworld.org/docid/3ae6b673c.html. 80 UNHCR, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum‑Seekers from Iraq, 31 May 2012, HCR/EG/IRQ/12/03, page 20 and 31, http://www.refworld.org/docid/4fc77d522.html. 81 Real or perceived ethnicity is covered by the Convention grounds race and/or nationality, see, for example, UNHCR Handbook, note 26 above, paras. 68 and 74 and UNHCR Gender‑Persecution Guidelines, note 56 above, paras. 24 (race) and 27 (nationality).82 UNHCR Gender‑Persecution Guidelines, note 56 above, paras. 25 (religion), 28 to 31 (membership of a particular social group), and 32 to 34 (political opinion). UNHCR Sexual Orientation and/or Gender Identity Guidelines, note 56 above, paras. 42 and 43 (religion), 44 to 49 (membership of a particular social group), and 50 (political opinion).

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C. Internal flight or relocation alternative

40. The relevance of an internal flight or relocation alternative in situations of armed conflict and violence needs to be carefully assessed. Situations of armed conflict and violence are often characterized by wide‑spread fighting, are frequently fluid, with changing frontlines and/or escalations in violence, and often involve a variety of state and non‑state actors, who may not be easily identifiable, operating in diverse geographical areas. Further, such situations often seriously affect state and societal structures and support systems (see paragraph 19 of these Guidelines) creating hardships for the civilian population. The humani‑tarian situation of civilian populations living in areas affected by situations of armed conflict and violence is often dire, including as a result of blocking supply routes and restrictions on humanitarian aid and freedom of movement. Considering these factors, in many situations of armed conflict and violence, it may neither be relevant nor reasonable to apply an internal flight or relocation alternative.

41. Only when the situation of armed conflict and violence and its impact is geographically limited and con‑fined to a specific part of the country would it be relevant to assess whether an internal flight or relocation alternative exists.83 In such situations, a careful examination needs to be made of the practical, legal and safe accessibility of the identified alternative area, in particular for the person concerned, and the ability of the state or other entity to provide protection that is effective. Protection must be provided by an organized and stable authority exercising full control over the territory and population in question.84 It would be inap‑propriate to equate the exercise of a certain administrative authority and control over territory by interna‑tional organisations or non‑state actors, with national protection provided by a state.85 Such control is often transitional or temporary and without the range of functions required of a state, including the ability to readmit nationals to the territory or to exercise other basic functions of government. Specifically, non‑state entities and bodies do not have the attributes of a state. Their ability to enforce the law is limited. Further, in determining whether the internal flight or relocation alternative is reasonable, a careful assessment needs to be made of the ability of the person to live in safety and security without undue hardship, and for her or his human rights to be ensured. In addition, and in particular, the likely spread of the situation of armed con‑flict and violence into new areas needs to be taken into account (see paragraphs 25 and 40 of these Guide‑lines).86 It is not reasonable to expect someone to relocate to a zone of active armed conflict and violence.

42. The presence of internally displaced persons, including those who are receiving international assis‑tance, in one part of the country, is not necessarily evidence of the reasonableness of a proposed internal flight or relocation alternative in that part of the country.87 Internally displaced persons often do not enjoy basic rights88 and may face economic destitution or existence below an adequate level of subsistence, which would be evidence of the unreasonableness of the proposed internal flight or relocation alterna‑tive.89 It is also necessary to consider the capacity of local authorities to provide protection against harm, as well as whether human rights, particularly non‑derogable rights, are respected.90 Further, in some sit‑uations, internal displacement may be the result of ethnic cleansing policies, or similar, in violation of the prohibitions on forcible transfer and arbitrary displacement under IHL in the context of an armed con‑flict. In such circumstances, an internal flight or relocation alternative should not be presumed to exist.91

43. Equally, “protected zones”92 or “safe zones”93 and other similar areas should not necessarily be considered a relevant or reasonable internal flight or relocation alternative. Under IHL, protected

83 UNHCR Handbook, note 26 above, para. 91. For UNHCR guidance on a proper assessment of an internal flight or relocation alternative, see UNHCR, Guidelines on International Protection No. 4: “Internal Flight or Relocation Alternative” Within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees, 23 July 2003, HCR/GIP/03/04, (“UNHCR IFA Guidelines”), http://www.refworld.org/docid/3f2791a44.html.84 UNHCR IFA Guidelines, note 83 above, para. 17.85 Ibid., paras. 16 and 17. 86 Ibid., paras. 17 and 27 to 30.87 Ibid., para. 31. 88 Ibid., para. 32.89 Ibid., para. 29. See also, Sufi and Elmi v. United Kingdom, note 45 above, para. 291. 90 UNHCR IFA Guidelines, note 83 above, para. 28.91 Ibid., para. 31.92 The term “protected zones” is the overarching term used by the International Committee of the Red Cross (ICRC) for all relevant zones stipulated in the 1949 Geneva Conventions and Additional Protocol I, and see Rules 35 to 37 of customary IHL, in: J –M Henkaerts and L Doswald‑Beck (eds.), Customary International Law, Volume I: Rules (Cambridge University Press, 2005), pp. 119‑126. The legal bases for establishing protected zones in the context of an armed conflict within the meaning of IHL can be found in Article 23 of the First Geneva Convention, note 38 above, Article 14 (hospital and safety zones and localities) and 15 (neutralized zones) of the Fourth Geneva Convention, note 13 above, and Article 59 (non‑defended localities) and 60 (demilitarized zones) of Protocol I to the Geneva Convention, note 13 above. 93 In a number of instances, the United Nations Security Council has called upon the creation of “safe zones”, see, for example, UNSC Res. 787 (1992), 16 November 1992; UNSC Res. 819 (1993), 16 April 1993; UNSC Res. 824 (1993), 6 May 1993; UNSC Res. 918 (1994), 17 May 1994; and UNSC Res. 929 (1994), 22 June 1994.


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zones agreed upon by the concerned belligerents are set up as measures to protect the civil‑ian population and other categories of protected persons (for example, the wounded and sick, including wounded and sick combatants/fighters) from the effects of armed conflict. Similarly, “safe zones” and other similar areas established on the basis of United Nations Security Council resolutions, seek to prevent certain areas and persons from falling into enemy hands, even if their establishment and implementation differs from the “protected zones” within the meaning of IHL. Despite the overall objective of these zones and areas, the safety of the people living in such zones and areas may be compromised, as a result of sieges, or attacks against the zone or area and the population therein.

III. SUBSTANTIVE ANALYSIS OF ARTICLE I(2) OF THE 1969 OAU CONVENTION

44. Article I(1) of the 1969 OAU Convention replicates the 1951 Convention refugee definition contained in Article 1A(2) of the 1951 Convention, as amended by the 1967 Protocol,94 while Ar‑ticle I(2) offers refugee protection to:

‘every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.’

Preliminary considerations to guide interpretation

45. In applying the 1969 OAU Convention definition, the primacy of the 1951 Convention needs to be borne in mind, given its status as the ‘basic and universal instrument’ for the pro‑tection of refugees.95 Following the adoption of the 1967 Protocol, which made the 1951 Con‑vention the global instrument for the protection of refugees, the 1969 OAU Convention sought in large part to address the specific challenges facing African countries in responding to refugee crises on the continent.

46. The 1969 OAU Convention is a widely ratified, legally binding instrument,96 which is protec‑tion‑ and humanitarian‑oriented97 and reflects trans‑African solidarity.98 It specifically reaffirms the importance of the institution of asylum,99 the principle of non‑refoulement100 and non‑dis‑crimination,101 the duties of refugees,102 and the search for durable solutions, including respect for the voluntary character of repatriation.103 Cooperation with the African Union and UNHCR is also emphasized,104 and it calls on all OAU (now African Union) Member States to accede to the 1951 Convention.105

94 Contrary to Article 1A(2) of the 1951 Convention, Article I(1) of the 1969 OAU Convention does not include the temporal limitation of having a well‑founded fear as a result of ‘events occurring before 1 January 1951’; a limitation later removed with the adoption of the 1967 Protocol, Article I(2).95 1969 OAU Convention, note 4 above, ninth preambular paragraph.96 To date, the 1969 OAU Convention has been ratified by 46 of the African Union’s (AU) 54 Member States. Djibouti, Eritrea, Madagascar, Mauritius, Namibia, Sao Tomé & Principe and Somalia have signed but not ratified or acceded to the 1969 OAU Convention. Only the Saharawi Arab Demo‑cratic Republic (SADR) has neither signed nor ratified or acceded to the 1969 OAU Convention. Morocco is a party to the 1969 OAU Convention, but not a Member State of the African Union.97 1969 OAU Convention, note 4 above, second preambular paragraph. 98 Ibid., eighth preambular paragraph.99 Ibid., Article II. A right to seek and obtain asylum is recognized in Article 12(3) of the African Charter on Human and Peoples’ Rights, Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (“Banjul Charter”), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), http://www.refworld.org/docid/3ae6b3630.html. 100 1969 OAU Convention, note 4 above, Article II(3).101 Ibid., Article IV.102 Ibid., Article III.103 Ibid., Article II(5), referring to a right to reside, to be granted temporary residence, and resettlement. The right to voluntary repatriation is regu‑lated by Article V of the 1969 OAU Convention.104 Ibid., eleventh preambular paragraph and Articles VII and VIII.105 To date, of the African Union’s 54 Member States only the Comoros, Eritrea, Libya, Mauritius and South Sudan have neither signed nor ratified the 1951 Convention or its 1967 Protocol. Madagascar is a party to the 1951 Convention but not to the 1967 Protocol. Madagascar and the Republic of Congo continue to recognise the 1951 Convention’s geographical limitation. Finally, Cabo Verde is party to the 1967 Protocol but not the 1951 Convention.


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Scope of the 1969 OAU Convention definition

47. In accordance with the ordinary meaning of the terms, the 1969 OAU Convention definition ap‑plies to all persons within the jurisdiction of a State Party and is not limited to persons whose country of origin or nationality is in Africa.

48. Article I(2) of the 1969 OAU Convention is the first refugee definition of its kind to steer away from persecutory conduct towards more generalized or so‑called “objectively” identifiable situations. The 1969 OAU definition acknowledges that the compulsion for persons to leave their country may occur not only as a result of the conduct by state or non‑state actors in the refugee’s country of origin, but also as a result of that government’s loss of authority or control due to external aggression, oc‑cupation, foreign domination or events seriously disturbing public order.106 The 1969 OAU definition focuses on situations that compel people to leave their countries in search of safety and sanctuary.

B. Elements of the 1969 OAU Convention definition

49. Article I(2) of the 1969 OAU Convention protects as refugees persons who (i) are outside their country of origin,107 (ii) having been compelled to leave their place of habitual residence, (iii) because one or more of the situations listed in the definition exists in their country of origin or nationality. These elements of the 1969 OAU Convention definition are explained below and need to be consid‑ered as part of a holistic assessment of a claim for refugee status.

Compelled to leave one’s place of habitual residence

50. By including the language of “compulsion” in the definition, Article I(2) of the 1969 OAU Con‑vention emphasizes the seriousness of the situation. The verb “to compel” is understood to mean ’to urge irresistibly, to constrain, oblige, force’.108 Reference to one’s ‘place of habitual residence’ must be understood as part of the compulsion to leave and seek refuge outside one’s country of origin or nationality, i.e. the situation must have an impact on the person’s place of habitual residence. The ‘place of habitual residence’ element has no other or separate legal effect. Thus, when the situation in question is sufficiently serious that it is objectively reasonable for a person to leave her or his place of habitual residence and seek refuge in another country, she or he needs to be protected.109

51. Article I(2) of the 1969 OAU Convention does not require a personalized or discriminatory threat or risk of harm.110 Whole groups of persons or an entire population may be affected by the situation and be compelled to leave their places of habitual residence owing to the situation in question. As Ar‑ticle I(2) emphasizes the assessment of the seriousness of the situation in question more than motives for flight or the risk of harm, decision‑makers should assess whether flight from the country of origin or nationality is objectively reasonable.

Refugees sur place

52. Sur place claims are accepted under the 1969 OAU Convention consistent with the interpretation of the 1951 Convention (see paragraph 31 of these Guidelines).

106 J.C. Hathaway, The Law of Refugee Status (Butterworths, 1991), 17.107 The phrase ‘country of origin or nationality’ refers to the person’s country of nationality, or in the case of stateless persons, the reference to ‘country of origin’ can be assimilated with ‘country of former habitual residence’ in Article 1A(2) of the 1951 Convention. To benefit from the 1969 OAU Convention, an applicant needs to be outside her or his country of origin or nationality.108 ‘compel, v’, The Oxford English Dictionary 2nd edition, OED online, 2015, Oxford University Press. 109 Radjabu v. The Chairperson of the Standing Committee for Refugee Affairs, 8830/2010, South Africa: High Court, 4 September 2014, para. 6, http://www.refworld.org/docid/540874f94.html. The criterion of ‘objectively reasonable to leave’ speaks to the ordinary meaning of the word ‘compulsion’. Accord‑ing to the Court, compulsion rather than volition is the predominant factor, whereby determining whether a person qualifies for refugee status under the regional definition requires an assessment of the existence of objectively ascertainable circumstances in the person’s country of origin corresponding with any of those stipulated in the definition and whether their effect on the person concerned has been such as to force him or her to leave the place where s/he ordinarily resided.110 Article I(2) of the 1969 OAU Convention is not ignorant of a risk of harm as is evident from the phrase ‘is compelled to leave’ in the definition read in conjunction with the principle of non‑refoulement laid down in Article II(3) of the 1969 OAU Convention, protecting people from being returned to a territory where their life, physical integrity or liberty would be threatened. However, a threat or risk of harm is not a necessary requirement to be granted protection under the regional definition.



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Situations compelling flight

53. The situations mentioned in Article I(2) of the 1969 OAU Convention are to be given their ordinary meaning in their context and in light of their (protection‑oriented) object and purpose.111 They should also, wherever possible, be interpreted in such a way that they remain relevant and applicable to situations that were not foreseeable when the 1969 OAU Convention was drafted.

54. The situation may be the result of ‘external aggression’, i.e. aggression through the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations.112 These situations may include armed conflicts fuelled by outside involvement or that have spilled over from neighbouring states, including because of the presence of (members of) the armed forces of another state or incursions by foreign armed groups.

55. Situations of armed conflict and violence may also accompany, or be the result of, ‘occu‑pation’, i.e. a situation whereby the territory is actually placed under the authority or effective control of a hostile foreign state’s armed forces.113 This may also be the case for other situations not classified as ‘occupation’ within the meaning of IHL, where armed group(s) from either within or outside the country exercise control over territory.114 Situations of armed conflict and vio‑lence could also accompany, or be the result of, ‘foreign domination’, i.e. the political, economic or cultural control of a state by (agents of) one or more other states, association of states, or state‑governed international organizations.115

56. The phrase ‘events seriously disturbing public order’ should be construed, in line with the 1969 OAU Convention’s humanitarian object and purpose, to include events that impact the mainte‑nance of public order (ordre public) based on respect for the rule of law and human dignity to such an extent that the life, security and freedom of people are put in danger.116 The threshold of “seri‑ous” refers to public disorder events likely to disrupt the normal functioning of the institutions of the state and affect internal and external security and stability of the state and society. Such events may be categorized as an IAC or NIAC within the meaning of IHL, but may also include events not categorized as an armed conflict within the meaning of IHL, involving violence by or between different groups in society or between the state and non‑state actors.117 The ground of ‘events se‑riously disturbing public order’ appears to be the primary element of Article I(2) of the 1969 OAU Convention under which refugee status is determined.118

57. A serious disturbance of public order may either be prompted by one‑off acts or incidents, or a series of acts or incidents of a systematic or cumulative nature, in response to which the state is either unwilling or unable to provide protection. According to the ordinary meaning of the definition’s terms, ‘events seriously disturbing public order’ may take place in either part or the whole of the country. Situations that have prompted the government to declare a state of emer‑gency may be an important, albeit unnecessary indicator of the ground, although each situation should be assessed individually.119

111 EXCOM Conclusion No. 103 (LVI), 2005, para. (c).112 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, Article 2(4) and Chapter VII, (“UN Charter”), http://www.refworld.org/docid/3ae6b3930.html. Article 1 of the UN General Assembly, Definition of Aggression, 14 December 1974, A/RES/3314, http://www.refworld.org/docid/3b00f1c57c.html, and Article 3, which includes a non‑exhaustive list of acts that qualify as an act of aggression. See also, Article 8bis of the Rome Statute ICC, note 32 above.113 Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, 18 October 1907, Article 42, http://www.refworld.org/docid/4374cae64.html. See also, Chiragov and Others v. Armenia, Application no. 13216/05, Council of Europe: European Court of Human Rights, 16 June 2015, para. 96, http://www.refworld.org/docid/5582d29d4.html.114 African Commission on Human and Peoples’ Rights, Statement by the African Commission on the Present Human Rights Situation in Mali, 18 January 2013, http://www.refworld.org/docid/5108d96a2.html. 115 Banjul Charter, note 97 above, Article 20(3): ‘All peoples shall have the right to the assistance of the States parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.’ 116 UNHCR, Persons covered by the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and by the Cartagena Declaration on Refugees (Submitted by the African Group and the Latin American Group), 6 April 1992, EC/1992/SCP/CRP.6, http://www.refworld.org/docid/3ae‑68cd214.html. 117 See paragraph 5 of these Guidelines. See also, Article 1(2) Protocol II to the Geneva Conventions, note 14 above. 118 M Sharpe, ‘The 1969 OAU Refugee Convention in the Context of Individual Refugee Status Determination’, in V Türk, A Edwards and C Wouters (eds.), In Flight from Conflict and Violence. UNHCR’s Consultations on Refugee Status and Other Forms of International Protection (Cambridge University Press and UNHCR, forthcoming 2017), 133. 119 ICCPR, note 34 above, Article 4. Also, HRC General Comment 29, note 43 above.



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58. ‘Events seriously disturbing public order’ also include situations of generalized violence, i.e. violence that is widespread, affecting large groups of persons or entire populations, serious and/or massive human rights violations, or events characterized by the loss of government control and its inability or unwillingness to protect its population ‑ including situations characterized by repressive and coercive social controls by non‑state actors, often pursued through intimidation, harassment and violence.

59. Factual indicators of events seriously disturbing public order include: a declared state of emergen‑cy; violations of IHL including war crimes;120 acts of terrorism; a significant number of people killed, in‑jured or displaced; the closure of schools; a lack of food, medical services and supplies, and other vital services such as water, electricity and sanitation; a change in, or collapse of, government institutions and services, political systems or the police and justice system; the imposition of parallel or informal justice and administrative systems; and/or non‑state actors controlling state territory.


60. The consideration of internal relocation is not generally relevant to the determination of refugee status under Article I(2) of the 1969 OAU Convention.121 Article I(2) covers both situations that affect either ‘part’ or ‘the whole’ of the refugee’s territory.122 As the focus of Article I(2) is on situations that seriously disrupt state and societal structures, people cannot be required to relocate to other parts of the country, even if the situation in these parts may be less disrupted. The only exception would be where the situation is indisputably confined to a particular part of the country or to a particular region or city, and where the state is able and willing to protect its citizens in other areas. Consideration of the likely spread of the situation and the accompanying violence and disorder into other areas would need to be carefully assessed, with a forward‑looking perspective.

IV. SUBSTANTIVE ANALYSIS OF CONCLUSION III(3) OF THE 1984 CARTAGENA DECLARATION

A. Preliminary considerations to guide interpretation

61. The Cartagena Declaration on Refugees is a regional protection instrument, adopted in 1984 by a group of experts from several Central and South American countries.123 It resulted from a colloquium on International Protection for Refugees and Displaced Persons in Central America, Mexico and Pan‑ama held in Cartagena de Indias, Colombia. Its adoption represented a humanitarian and pragmatic re‑sponse to the movements of people from conflict and other situations characterized by indiscriminate threats to life, security or freedom. The Cartagena Declaration reaffirms the peaceful, non‑political and exclusively humanitarian nature of asylum and the principle of non‑refoulement; the importance of searching actively for durable solutions; and the necessity of co‑ordination and harmonization of universal and regional systems and national efforts.124

62. Conclusion III(3) of the Cartagena Declaration recommends to include among refugees:

‘persons who have fled their country because their lives, security or freedom have been threatened by gener‑alized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstanc‑es which have seriously disturbed public order.’125

120 Rome Statute ICC, note 32 above, Article 8.121 UNHCR IFA Guidelines, note 83 above, para. 5.122 Recueil des décisions (No 2 ‑ 2008), Benin: Comité d’éligibilité au statut de réfugié, 2008, p. 97, http://www.refworld.org/docid/563cede14.html. See also, A. Edwards, ‘Refugee Status Determination in Africa’ (2006) 14 Afr J Intl Comp L 227.123 Belize, Colombia, Costa Rica, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama and Venezuela.124 See, respectively, Conclusion III(4) on the right to asylum; Conclusion III(5) on the principle of non‑refoulement; Conclusion III(11) on integration and Conclusion III(12) on voluntary repatriation; and Conclusions III(14) to (17) on co‑operation, coordination and harmonization.125 The original Spanish text of Conclusion III(3) of the Cartagena Declaration refers to ‘seguridad’, which is properly translated into English as ‘security’ rather than ‘safety’, which is the word used in the Cartagena Declaration, note 5 above.

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63. The Cartagena refugee definition has attained a particular standing in the region, not least through its incorporation into national laws and its application in practice.126 The authority of the Cartagena refugee definition has been reaffirmed by the Inter‑American Court of Human Rights (IACrtHR),127 the San José Declaration on Refugees and Displaced Persons (1994),128 the Mexico Declaration and Plan of Action to Strengthen International Protection of Refugees in Latin Amer‑ica (2004),129 the Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas (2011)130 and the Brazil Declaration and Plan of Action (2014).131

64. As a protection instrument, the Cartagena Declaration has at its foundation the commitment to ensure the treatment provided by the 1951 Convention to all refugees.132 It drew inspiration from the 1969 OAU Convention, as well as the doctrine of the Inter‑American Commission on Human Rights (IACHR).133 Its interpretation is to be informed by international and regional law, especially the norms and standards of the 1948 American Declaration of the Rights and Duties of Man,134 the 1969 American Convention on Human Rights,135 and the evolving case law of the Inter‑American human rights bodies.

65. Furthermore, as a humanitarian‑ and protection‑oriented instrument, the Cartagena Declaration calls for an inclusive, evolving and flexible interpretation of the refugee definition.136 Where the ordi‑nary meaning is not clear, the text should be given a purposive or teleological interpretation.

Scope of the Cartagena refugee definition

66. The Cartagena refugee definition provides international protection to people fleeing the threats resulting from “objectively” identifiable circumstances which have seriously disturbed pub‑lic order. The circumstances referred to in the Cartagena refugee definition are characterized by the indiscriminate, unpredictable or collective nature of the threats they present to the lif(v)e(s), security or freedom of a person or group of persons, or even to populations at large. The focus of the Cartagena refugee definition is on the exposure of people to the threats inherent in the circumstances referred to.

67. As the Cartagena refugee definition focuses on indiscriminate threats, decision‑makers are ad‑vised to adopt a consistent approach to persons fleeing similar circumstances in the same country. This contributes towards addressing protection gaps in the region, and to ensuring more consistent outcomes between cases.

B. Elements of the Cartagena refugee definition

68. The Cartagena refugee definition protects as refugees persons who (i) are outside their country,137 (ii) because their life, security or freedom has been threatened, (iii) as a result of

126 To date, the Cartagena refugee definition has been incorporated into the national laws of 14 countries: Argentina, Belize, Bolivia, Brazil, Chile, Colombia, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Paraguay, Peru, and Uruguay. In addition, the Constitutional Court of Ecuador has ordered the regional definition to be reinstated in the national legal framework in September 2014: Sentencia No 002‑14‑SIN‑CC, Ecuador: Corte Constitucional, 14 August 2014, http://www.refworld.org/docid/578f56084.html.127 Advisory Opinion OC‑21/14 of August 19, 2014 requested by the Argentine Republic, the Federative Republic of Brazil, the Republic of Paraguay and the Oriental Republic of Uruguay: Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection, OC‑21/14, Inter‑American Court of Human Rights (IACrtHR), 19 August 2014, paras. 76, 77, 79 and 249, http://www.refworld.org/docid/54206c744.html.128 San José Declaration on Refugees and Displaced Persons, 7 December 1994, http://www.refworld.org/docid/4a54bc3fd.html. 129 Mexico Declaration and Plan of Action to Strengthen International Protection of Refugees in Latin America, 16 November 2004, http://www.refworld.org/docid/424bf6914.html. 130 Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas, 11 November 2010, http://www.refworld.org/docid/ 4cdd44582.html. 131 Brazil Declaration and Plan of Action, 3 December 2014, http://www.refworld.org/docid/5487065b4.html. 132 Cartagena Declaration, note 5 above, Conclusion III(8). See also Recommendation E of the Final Act of the 1951 United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, 25 July 1951, A/CONF.2/108/Rev.1, http://www.refworld.org/docid/40a8a7394.html.133 See the text of Cartagena Declaration, note 5 above, Conclusion III(3).134 Inter‑American Commission on Human Rights (IACHR), American Declaration of the Rights and Duties of Man, 2 May 1948, http://www.refworld.org/docid/3ae6b3710.html. 135 Cartagena Declaration, note 5 above, Conclusion III(8) and (10) make explicit reference to the 1969 American Convention on Human Rights, note 43 above.136 EXCOM Conclusion No. 103 (LVI), 2005, para. (c).137 For the purposes of the Cartagena definition, reference to ‘their country’, in the phrase ‘persons who have fled their country’, is to be interpreted in line with the 1951 Convention as a person’s country of nationality, or, in the case of stateless persons, the country of former habitual residence.



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circumstances referred to in the definition existing in their country. The particular elements of the Cartagena refugee definition are explained below. These elements need to be considered as part of a holistic assessment.

Refugees sur place

69. Sur place claims are accepted under the Cartagena refugee definition consistent with the interpre‑tation of the 1951 Convention (see paragraph 31 of these Guidelines).

Circumstances compelling flight

70. These circumstances referred to in the Cartagena refugee definition include, but are not limited to, generalized violence, foreign aggression, internal conflicts, and massive violation of human rights. Further, other circumstances which have seriously disturbed public order in the country may also result in threats to persons’ lives, security or freedom forcing them to flee their country. Guided by the protection purpose of the Cartagena Declaration, the circumstances referred to in the Cartage‑na refugee definition are to be given their ordinary meaning, wherever possible, and interpreted in an evolutionary way so that they remain relevant to situations not foreseeable when the Cartagena Declaration was drafted.

71. ‘Generalized violence’ is not a term of art, nor does it have a strict or closed meaning. Adopting a case‑by‑case approach, the term encompasses situations characterized by violence that is indis‑criminate and/or sufficiently widespread to the point of affecting large groups of persons or entire populations. Drawing on international human rights law to determine whether a situation of gener‑alized violence prevails, it would be appropriate to identify factual indicators relating to the number and type of security incidents, as well as the overall level of violence in the country of origin and its effect on civilian populations.138 Situations of generalized violence include situations involving mass and/or serious violations of human rights or IHL. Generalized violence is established via the intensity or geographic spread of the violence, or through a combination of these.

72. Since ‘generalized violence’ is not a term found in IHL, it cannot be limited to situations of armed conflict within the meaning of IHL, although it can include these situations if the conditions for appli‑cability of IHL are met. See also paragraph 5 of these Guidelines in relation to the limited relevance of categorizing a situation as an armed conflict under IHL in determining who is a refugee.

73. Situations of generalized violence encompass violence carried out by state or non‑state actors. It is the situation on the ground, and the risks that the violence presents, that is at issue.

74. ‘Foreign aggression’ is understood to be the same as the terms ‘aggression’, ‘war of aggression’ and ‘act of aggression’ as defined under international law, as well as the term ‘external aggression’ included in the 1969 OAU Convention (see paragraph 54 of these Guidelines).139 Consistent with the object and purpose of the Cartagena Declaration, foreign aggression can be equated to the crime leading to an IAC within the meaning of IHL,140 as well as relating to situations not categorized as such under IHL. These situations may include conflicts fuelled by outside involvement or those that have spilled

138 The IACrtHR has considered a situation of generalized and indiscriminate violence in El Salvador in the early 1980s to exist, referring to systematic violence indiscriminately affecting a large number of people over a prolonged period of time. See The Massacres of El Mozote and nearby places v. El Salvador, Inter‑American Court of Human Rights (IACrtHR), 25 October 2012, paras. 70 and 193, http://www.refworld.org/docid/564ecfee4.html.The Inter‑American Commission on Human Rights (IACHR) has referred to similar indicators when describing situations of “widespread violence”. These include the following: a) the number of violent incidents as well as the number of victims of those incidents is very high; b) the prevailing violence inflicts heavy suffering among the population; c) violence manifests itself in most egregious forms, such as massacres, torture, mutilation, cruel, inhuman and degrading treatments, summary executions, kidnappings, disappearances of persons and gross breaches to IHL; d) the perpetration of acts of violence is often aimed at causing terror and, eventually, creating a situation such that individuals are left with no option other than flee the area affected; e) violence can emanate from state and non‑state agents, and when it emanates from the first, or from others acting at the instigation or with the acqui‑escence of the state’s authorities, the authors enjoy impunity; f) where violence emanates from non‑state agents, authorities are unable to effectively control them; and g) the level and extent of violence is such that the normal functioning of society is seriously impaired. See, for example, Inter‑American Commission on Human Rights (IACHR), Report on the Situation of Human Rights in Jamaica, 10 August 2012, OEA/Ser.L/V/II.144, pp. 5 and 27, http://www.refworld.org/docid/51ff65004.html.139 See supra note 112 and Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, International Court of Justice (ICJ), 27 June 1986, http://www.refworld.org/docid/4023a44d2.html.140 See, Common Article 2(1) of the 1949 Geneva Conventions, note 13 above, which is applicable to IAC and refers to ‘cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting States’, and see also Article 1(4) of Protocol I to the Geneva Conven‑tions, note 13 above, which makes further reference to ’armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self‑determination’.

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over from neighbouring states, including because of the presence of (members of) the armed forc‑es of another state or incursions by foreign armed groups.

75. ‘Internal conflicts’ in the Cartagena refugee definition includes NIACs within the meaning of IHL.141 However, keeping in mind the protection purpose of the Cartagena Declaration, the term ‘internal conflicts’ extends to internal armed conflicts that are not classified as NIACs within the meaning of IHL. IHL is considered to be informative, though not determinative of whether an inter‑nal conflict exists. Similarly, the qualifications made by the parties involved or affected by it are also considered to be informative rather than determinative (see paragraph 5 of these Guidelines).142 For the purpose of the Cartagena refugee definition, situations that fall below the threshold of a NIAC within the meaning of IHL may be better captured under the ground of ‘generalized violence’ or ‘massive violation of human rights’.

76. To determine whether a situation of ‘massive violation of human rights’ prevails, reference to the jurisprudence of the IACrtHR is particularly relevant. The term ‘massive’ refers to the scale or magnitude of the violation, irrespective of the duration, and as such, the violation may be the result of a single event.143 Where the effects of human rights violations go beyond the actual/direct victims to affect large segments of the population, or even the society as a whole, the situation may also be classified as ‘massive violation of human rights’. The elements of planning and organization on the part of the perpetrator – whether a state or non‑state actor – can also indicate a situation of ‘massive violation of human rights’, although they are not a requirement. In the case of non‑state actors committing human rights abuses, a situation of ‘massive violation of human rights’ may exist when the state is either unable or unwilling to protect their citizens by failing to prevent, investigate, prosecute or sanction these violations.144 In this context, dis‑placement may be an indicator of ‘massive violation of human rights’ or lead to serious human rights violations. The Cartagena refugee definition makes no distinction between the types of rights that are threatened.

77. The existence of judgments or provisional measures by the IACrtHR145 or precautionary meas‑ures by the IACHR146 related to a given situation would be strong evidence that a situation of massive violation of human rights exists. The statements of human rights bodies or courts may also provide relevant indicators. However, such judgments or measures are not required to qualify a sit‑uation as one of ‘massive violation of human rights’. This is a factual assessment, to be undertaken by the relevant asylum adjudication body, relying on relevant information and evidence, including the applicant’s own testimony.

78. Of all the circumstances referred to in the Cartagena refugee definition, ‘other circumstances which have seriously disturbed public order’ is the least frequently applied by national adjudication bodies when determining refugee claims under the Cartagena refugee definition.147 The notion of ‘public order’, while not having a universally accepted definition, can be interpreted in the context of the Cartagena refugee definition as referring to the peace, internal and external security as well

141 See, Common Article 3 of the 1949 Geneva Conventions, note 38 above, Article 1 of Protocol II to the Geneva Convention, note 14 above, and Prosecutor v. Dusko Tadic aka “Dule” (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction), IT‑94‑1, International Criminal Tribunal for the former Yugoslavia (ICTY), 2 October 1995, para. 70, http://www.refworld.org/docid/47fdfb520.html.142 For example, while an UN Security Council designation of a situation as a NIAC within the meaning of IHL would be sufficient for the purposes of the Cartagena refugee definition, such a qualification cannot be a requirement. See also, UNHCR Arusha Summary Conclusion, note 29 above, para. 24. 143 Case of the “Las Dos Erres” Massacre v. Guatemala, Inter‑American Court of Human Rights (IACrtHR), 24 November 2009, paras. 73, 79 and 152, http://www.refworld.org/docid/564ed31a4.html; Río Negro Massacres v. Guatemala, Inter‑American Court of Human Rights (IACrtHR), 4 September 2012, paras. 56, 58‑60 and 63, http://www.refworld.org/docid/564ed2714.html.144 González et al. (“Cotton Field”) v. Mexico, Inter‑American Court of Human Rights (IACrtHR), 16 November 2009, para. 236, http://www.refworld.org/docid/564ed5234.html. 145 Provisional measures are an instrument used by the IACrtHR to prevent irreparable harm to the rights and freedoms ensured under the American Convention on Human Rights of persons who are in a situation of extreme gravity and urgency. The measures are ordered ex officio or at the request of a party and result in a protection request to the respondent state of the alleged victim(s). See, American Convention on Human Rights, note 43 above, Article 63(2) and Organization of American States (OAS), Rules of Procedure of the Inter‑American Court of Human Rights, 16‑29 November 2009, Article 27, https://www.cidh.oas.org/Basicos/English/Basic20.Rules%20of%20Procedure%20of%20the%20Court.htm. 146 Organization of American States (OAS), Rules of Procedure of the Inter‑American Commission on Human Rights, 1 August 2013, http://www.oas.org/en/iachr/mandate/Basics/rulesiachr.asp, Article 25, establishes that, in serious and urgent situations, the Commission may, on its own initiative or at the request of a party, request that a State adopt precautionary measures to prevent irreparable harm to persons or to the subject matter of the proceedings in connection with a pending petition or case, as well as to persons under the jurisdiction of the State concerned, independently of any pending petition or case.147 UNHCR, Summary Conclusions on the interpretation of the extended refugee definition in the 1984 Cartagena Declaration; roundtable 15 and 16 October 2013, Montevideo, Uruguay, 7 July 2014, p. 7, http://www.refworld.org/docid/53c52e7d4.html.

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as stability of the state and society, plus the normal functioning of the institutions of the state, based on respect for the rule of law and human dignity. Circumstances seriously disturbing public order can take place in times of armed conflict within the meaning of IHL as well as in peacetime. See also par‑agraphs 56 to 59 of these Guidelines.

79. In the jurisprudence of the IACrtHR, circumstances seriously disturbing public order have been defined by reference in part to the acts of states derogating from their human rights obligations in cases where a state of emergency has been declared.148 However, a declaration of a state of emergen‑cy should not be seen as a prerequisite for the existence of a circumstance seriously disturbing public order, even though it would ordinarily be indicative of such a situation.

80. The inclusion of the adjective ‘other’ in ‘other circumstances’ in the Cartagena refugee definition allows states to grant protection in circumstances beyond those related to the four situations referred to in the Cartagena refugee definition.

Threat to life, security or freedom

81. The third element of the Cartagena definition is the link between the circumstance occurring in the country of origin and the threat it poses to the lives, security and freedom of persons residing in the country. The ‘threat’ or risk element in the definition connotes the possibility of harm being inflicted on a person, a group or a whole population; it does not imply that the harm has actually materialized. The link between the circumstance and the threat should not be interpreted in such a manner as to curtail or restrict unnecessarily the scope of international protection granted to persons fleeing their country, for example by requiring an individualized assessment of the risk to life, security or freedom. In fact, spatial/geographical proximity of the circumstance to the person would suffice to create a threat forcing the person to flee the country.

82. Since the Cartagena refugee definition is oriented towards circumstances that affect groups or whole populations, the focus is not on the personal circumstances of the individual fleeing a danger to her or his life, security or freedom, but rather on the objective circumstances in the country of origin.

83. Reference to persons’ lives, security or freedom should be interpreted broadly, encompassing per‑sons’ physical and mental integrity, security, freedoms, human dignity and livelihoods, with reference to internationally and regionally recognized human rights.

Gang violence or violence from organized criminal groups

84. People fleeing gang violence or violence by organized criminal groups may meet the refugee cri‑teria under the 1951 Convention.149 People fleeing such violence may also fall under one or more of the circumstances mentioned in the Cartagena refugee definition.


85. The focus of the Cartagena refugee definition is on situations that seriously disrupt state and societal structures. Under such circumstances, people cannot be required to relocate to other parts of the country, even if the situation in these parts may be less disrupted. The only exception would be where the situation is isolated to a particular part of the country or to a particular region or city, and where the state is able and willing to protect its citizens in those other areas. Consideration of the likely spread of the situation and the accompanying violence and disorder into other areas would need to be carefully assessed, with a forward‑looking perspective.

148 American Convention on Human Rights, note 43 above, Article 27(1), allowing states to take derogating measures in time of war, public danger, or other emergency that threatens the independence or security of a State Party. See, Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights), OC‑8/87, Inter‑American Court of Human Rights, 30 January 1987, paras. 19 and 20, http://www.refworld.org/docid/402795714.html.149 On the application of the 1951 Convention to such situations, see: UNHCR Gangs Guidance Note, note 12 above.



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V. PROCEDURAL AND EVIDENTIARY ISSUES

A. Approaches to applying the 1951 Convention/1967 Protocol definition and the regional definitions

86. The various definitions of a refugee are not mutually exclusive. They each recognize a person as a refugee, thus triggering the standards of treatment foreseen by the 1951 Convention (see paragraph 8 of these Guidelines).

87. In applying the refugee definitions, a sequential approach is preferred, whereby refugee status is initially assessed under the 1951 Convention definition before an assessment is made under the regional definitions if the person is found not to be a refugee under the 1951 Convention. Such an approach underscores the universal character of the definition of a refugee in Article 1A(2) of the 1951 Convention, the primacy of that Convention,150 and the explicitly complementary character of the regional definitions.151

88. However, applying the regional definitions would be more practical and efficient in group situa‑tions or in specific regional contexts,152 as long as the 1951 Convention standards of treatment apply.

B. Establishing the facts

89. Claims for refugee status related to situations of armed conflict and violence can raise complex factual issues, turning on the particular circumstances of the applicant viewed against the causes, character and impact of the situation of armed conflict and violence. Unless prima facie recogni‑tion of refugee status is applied, claims for refugee status should be considered on their individual merits, taking into account up‑to‑date and relevant country of origin information.

Country of origin information

90. Up‑to‑date, relevant country of origin information is important for understanding the situation of armed conflict and violence and whether the country of origin is experiencing one of the situa‑tions or circumstances referred to in the regional definitions.153

91. Relevant country of origin information includes both qualitative and quantitative information. Qualitative information is particularly relevant to avoid misunderstandings, stereotyping and gen‑eralizations and allows for a deeper understanding of the situation of armed conflict and violence, i.e. of the history and development of the situation, the actors involved, the means and methods of warfare, strategies and tactics used and the effects the situation has on the country and the peo‑ple caught up in it.154 Quantitative information related to situations of armed conflict and violence should be used with appropriate caution. Different sources may use diverse methodologies, often depending on their motivation for collecting data, resulting in substantial divergences between sources. While statistical data can provide an indication of the impact of the situation on the pop‑ulation, such data may be inconclusive or unreliable regarding the risk, harm, relevant 1951 Con‑vention ground, and/or causal link between the risk of harm and ground, or situations mentioned in the regional definitions. Statistical information tends to focus on quantifiable features of the situation, such as the number of civilian casualties or the number of displaced persons, and may not capture other forms of harm – caused directly or indirectly by the armed conflict or violence – on persons, state structures or societies.

150 EXCOM Conclusion No. 87 (L) 1999, para. (f); EXCOM Conclusion No. 89 (LI) 2000. See also, 1969 OAU Convention, note 4 above, ninth pream‑bular paragraph, referring to the 1951 Convention/1967 Protocol as the basic and universal instrument for the protection of refugees.151 An additional argument for a sequential approach under the 1969 OAU Convention is the structure of Article I, where in paragraph 1 the 1951 Convention refugee definition is replicated before paragraph 2 provides the regional definition.152 UNHCR Prima Facie Recognition Guidelines, note 10 above, paras. 2 and 5.153 Radjabu v. The Chairperson of the Standing Committee for Refugee Affairs, note 107 above, para. 6, according to the Court, determining whether a person qualifies for refugee status under the extended definition requires an assessment of the existence of objectively ascertainable circumstances in the person’s country of origin corresponding with any of the circumstances stipulated in the definition. 154 Sufi and Elmi v. United Kingdom, note 45 above, para. 241.

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92. In the assessment of claims for refugee status, country of origin information must be relevant to the particular circumstances of the applicant. Obtaining reliable and accurate country of origin information that is specific to the situation of particular groups of applicants, including children,155 or persons of diverse gender identities and/or sexual orientations,156 frequently poses significant chal‑lenges. Such challenges may be especially pronounced in situations of armed conflict and violence. Similarly, the available country of origin information about situations of armed conflict and violence may not reflect the specific circumstances of women or of men, including the prevalence of gen‑der‑specific forms of harm, or take into account the changing composition and conduct of the actors involved.157 Decision‑makers must take due cognizance of this fact. In situations of armed conflict and violence, an absence of country of origin information about the situation of particular groups should not be interpreted as implying that such groups do not face specific threats.

Burden of proof

93. While in general the burden of proof lies with the person submitting the claim, the obligation to gather and analyse all relevant facts and supporting evidence is shared between the applicant and the decision‑maker.158 This shared responsibility is particularly important when the country of origin is experiencing a situation of armed conflict and violence, since this makes obtaining information and documentation – in general, as well as in relation to the individual – more difficult.159 People fleeing such situations are likely to encounter significant problems in giving a detailed account of events demonstrating a need for international protection, and/or in obtaining evidence to substan‑tiate the claim. In these circumstances, it is therefore frequently necessary to give applicants the benefit of the doubt.160

155 UNHCR, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, 22 December 2009, HCR/GIP/09/08, para. 74, http://www.refworld.org/docid/4b2f4f6d2.html. 156 UNHCR Gender‑Related Persecution Guidelines, note 56 above, para. 37. UNHCR Sexual Orientation and/or Gender Identity Guidelines, note 56 above, para. 66.157 UNHCR Cape Town Summary Conclusions, note 3 above, para. 23.158 UNHCR Handbook, note 26 above, para. 196. See also, UNHCR, Beyond Proof, Credibility Assessment in EU Asylum Systems: Full Report, May 2013, pp. 86‑88, http://www.refworld.org/docid/519b1fb54.html. 159 Refugee Appeal No. 71462/99, Tamil and a Citizen of the Democratic Socialist Republic of Sri Lanka v. Refugee Status Branch of the New Zealand Immigration Service, 71462/99, note 54 above, para. 51. 160 UNHCR Handbook, note 26 above, para. 203.


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Distr. GENERAL HCR/GIP/17/13 20 December 2017 Original: ENGLISH


Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees

UNHCR issues these Guidelines pursuant to its mandate, as contained in the Office’s Statute, in conjunction with Article 35 of the 1951 Convention relating to the Status of Refugees and Article II of its 1967 Protocol, as well as relevant regional instruments. These Guidelines complement the UN‑HCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention (Geneva: UNHCR, 1979; reissued 2011) and other Guidelines on International Protection. They replace the Revised Note on the Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees, October 2009, and all prior relevant guidance. By contrast, the Note on UNHCR’s Interpretation of Article 1D of the 1951 Convention relating to the Status of Refugees and Article 12(1)(a) of the EU Qualification Directive in the context of Palestinian refugees seeking inter‑national protection, May 2013, remains applicable.

These Guidelines, having benefited from broad public consultation, are intended to provide legal interpretative guidance for governments, legal practitioners, decision‑makers and the judiciary, as well as UNHCR personnel carrying out mandate refugee status determination under its mandate.

These Guidelines have been prepared in close cooperation with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”).

In light of UNHCR’s equality and non‑discrimination policies, wherever the original text of an inter‑national agreement was drafted in gender‑specific language and gender was not in issue, the text needs to be read and understood today as if it applied equally to men and women; for that reason, texts quoted in UNHCR publications reflect this principle through the inclusion of appropriate wording in square brackets.

UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection are available at: http://www.refworld.org/docid/4f33c8d92.html.

Calls for public consultation on future guidelines will be posted at: http://www.unhcr.org/ 544f59896.html.




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I. INTRODUCTION

1. Article 1D of the 1951 Convention relating to the Status of Refugees (“1951 Convention”)1 ac‑knowledges that certain categories of refugees may benefit from separate arrangements for their pro‑tection or assistance by organs or agencies of the United Nations other than the Office of the United Nations High Commissioner for Refugees (“UNHCR”). At present, Article 1D applies to Palestinian refugees, for whom the United Nations Relief and Works Agency for Palestine Refugees in the Near East (“UNRWA”)2 was established in order to respond to their situation.3

2. Article 1D of the 1951 Convention provides:4

This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.

When such protection or assistance has ceased for any reason, without the position of such persons being de‑finitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.4

2. Article 1D of the 1951 Convention is often characterised as an “exclusion clause”, whereas it has both exclusionary and inclusionary aspects5 and its two paragraphs are to be read sequentially. In other words, one must first come within the scope of the first paragraph before coming within the second paragraph. Paragraph 1 generally excludes from the protection of the 1951 Convention those Palestinian refugees who are receiving protection or assistance from UNRWA, while para‑graph 2 of Article 1D operates to include those very same Palestinian refugees when that protec‑tion or assistance has ceased. Once the protection or assistance has ceased (see section II E below), they are entitled ipso facto to the benefits of the 1951 Convention. As refugees already recognised by the international community,6 no separate or additional assessment under Article 1A(2) is re‑quired for them to qualify for Convention protection. Claimants need only demonstrate that they fall within the terms of Article 1D.

3. All States parties to the 1951 Convention and/or 1967 Protocol need to ensure that Article 1D is fully incorporated in national law and practice. Fully incorporating this provision in national law and practice is a matter of States parties’ obligations under the international refugee instruments.

4. These Guidelines address the interpretation of Article 1D of the 1951 Convention in respect of Palestinian refugees applying for protection under the 1951 Convention outside of UNRWA’s areas of operation. They provide UNHCR’s substantive interpretation of Article 1D (Part II), and also address

1 1951 Convention relating to the Status of Refugees (28 July 1951) 189 UNTS 137 (1951 Convention), http://www.refworld.org/docid/3be01b964.html, and its Protocol Relating to the Status of Refugees (31 January 1967) 606 UNTS 267 (1967 Protocol), http://www.refworld.org/docid/3ae6b3ae4.html. 2 UN General Assembly Resolution 302 (IV), Assistance to Palestine Refugees, 8 December 1949, A/RES/302, created UNRWA, which has responsi‑bilities to provide assistance and protection to Palestinian refugees. The role of UNRWA is also acknowledged by courts: see, for example, Bolbol v. Bevándorlási és Állampolgársági Hivatal, (“Bolbol”), C‑31/09, Court of Justice of the European Union (“CJEU”), 17 June 2010, para. 44, http://www.refworld.org/docid/4c1f62d42.html: “It is not in dispute that UNRWA constitutes one of the organs or agencies of the United Nations other than UNHCR which are referred to in Article 12(1)(a) of the Directive and in Article 1D of the Geneva Convention …”. See also, AD (Palestine), (“AD Pales‑tine”) [2015] NZIPT 800693‑695, New Zealand: Immigration and Protection Tribunal, 23 December 2015, paras 101‑116, http://www.refworld.org/docid/56b1bcc24.html. 3 Prior to the establishment of UNRWA, the United Nations had also established the UN Conciliation Commission for Palestine (“UNCCP”) to inter alia “facilitate the repatriation, resettlement and economic and social rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the Director of the United Nations Relief for Palestine Refugees and, through him [or her], with the appropriate organs and agencies of the United Nations.” UNGA Resolution 194 (III), Palestine ‑ Progress Report of the United Nations Mediator, 11 December 1948, A/RES/194, para. 11. By 1951, the UNCCP had informed the General Assembly, and began noting on an annual basis, that it was unable to find a means of achieving progress in the implementation of paragraph 11 of Resolution 194 (III). See, UNCCP, Progress Report of the United Nations Conciliation Commission for Palestine, UN Doc. A/1985, 20 November 1951 at paras 79 and 80 for first report, and more recently, Report of the UNCCP, 13 August 2015, A/70/319, Annex; UN General Assembly resolution 69/86.4 In these Guidelines, UNHCR refers to the first paragraph of Article 1D as ‘Article 1D(1)’ and the second paragraph as ‘Article 1D(2)’.5 The French representative to the Conference of Plenipotentiaries, Mr. Rochefort, stated that “the clause in question was really one which provided for deferred inclusion”. Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Summary of the Third Meeting, 19 November 1951, UN doc. A/Conf.2/SR.3, p. 10. All UN documents are available through the UN Official Document System database at http://www.un.org/en/documents/index.html. See also, James Hathaway and Michelle Foster, The Law of Refugee Status, (Cambridge: Cambridge University Press, 2nd edn., 2014), 513; and Lex Takkenberg, The Status of Palestinian Refugees in International Law, (Oxford: Oxford University Press, 1998), p. 66. See also, Guy Goodwin‑Gill and Jane McAdam, who state that Article 1D “should be seen not so much as an ‘exclusion’ clause,” but rather as a “contingent inclusion clause”. The Refugee in International Law, (Oxford: Oxford University Press, 3rd edn., 2007), 153; and Atle Grahl‑Madsen, who refers to it as a “suspensive clause”, The Status of Refugees in International Law, Volume I Refugee Character, A.W. Sijthoff‑Leyden, 1966, p. 263.6 “[P]alestinian refugees ‑ and there is no doubt but that the displaced Palestinians were considered at all relevant stages to be refugees ‑ were regarded, in and out of the United Nations, as belonging to a special category.” Amer Mohammed El‑Ali v. The Secretary of State for the Home Department and Daraz v. The Secretary of State for the Home Department (The United Nations High Commissioner for Refugees, Intervener), (“El‑Ali”) United Kingdom: Court of Appeal (England and Wales), 26 July 2002, [2002] EWCA Civ 1103, http://www.refworld.org/cases,GBR_CA_CIV,3f278a3a4.html, para. 15.

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a number of procedural and evidentiary matters (Part III), drawing on State practice, international and national jurisprudence, as well as the views of leading jurists and academic experts.

II. ANALYSIS

A. Object and purpose

5. In interpreting Article 1D, it is appropriate to have regard to its object and purpose and its con‑text, including through recourse to the travaux préparatoires of the 1951 Convention and to other contemporaneous international instruments intended to address the questions of protection and institutional responsibility for Palestinian refugees. A broad interpretation is warranted, based on the intention of the parties as expressed in the ordinary meaning of the terms of the treaty, consid‑ered in context and in the light of its object and purpose.7 By applying such, it is clear that Article 1D of the 1951 Convention has two related purposes which guide its interpretation and applica‑tion. The first purpose is to ensure that Palestinian refugees continue to be recognized as a specific class,8 and that they continue to receive protection and associated rights, until their position has been definitively settled in accordance with the relevant resolutions of the United Nations General Assembly.9 This purpose is also reflected in the discussions regarding the drafting of the Statute of the Office of the United Nations High Commissioner for Refugees, in which it was emphasized that Palestinian refugees should continue to be granted special status.10 It was also recognized as essential that the continuity of protection be ensured11 for Palestinians as a sui generis class of refugees under the 1951 Convention.

6. The second purpose of Article 1D is to avoid duplicating and overlapping competencies between UNHCR and UNRWA. The responsibilities of the two agencies are intended to be complementary.12 In this regard, it is noted that while UNHCR’s mandate is global, its competence “shall not extend to a person … who continues to receive from other organs or agencies of the United Nations pro‑tection or assistance.”13 In contrast, UNRWA has competence in five geographical areas or ‘fields’ of operation: Jordan, Lebanon, the Syrian Arab Republic, the West Bank (including East Jerusalem) and Gaza.14 Taken together, these territories constitute UNRWA’s areas of operation, in which it provides protection15 or assistance to a population of over five million Palestinian refugees.16

7 Article 31 of the Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331, http://www.refworld.org/docid/3ae6b3a10.html. See also, Ian Brownlie, Principles of Public International Law, (Oxford: Oxford University Press, 7th edn., 2008), 631.8 “The Article aims, fundamentally, to ensure continued protection of Palestinians as persons whose refugee character had already been established”. AD (Palestine), para.159, note 2 above. Article 1D was “intended for an existing category of refugees in respect of which the General Assembly had already taken certain action.” Takkenberg, note 5 above, 97.9 See also, Mostafa Abed El Karem El Kott and Others v. Bevándorlási és Állampolgársági Hivatal, C‑364/11, European Union: Court of Justice of the European Union, 19 December 2012, (“El Kott”), http://www.refworld.org/cases,ECJ,50d2d7b42.html, para 62, where the CJEU affirmed that the objective of Article 1D was to “ensure that Palestinian refugees continue to receive protection, as Palestinian refugees, until their position has been definitely settled …”. 10 General Assembly, Fifth Session, Official Records, Third Committee, 328th Meeting, 27 November 1950, paras 52, 55 (Mr. Baroody, Saudi Arabia), UN doc. A/C.3/SR.328, available through the UN Official Document System database at http://www.un.org/en/documents/index.html. Also cited in UNHCR’s intervention before the Court of Appeal of England and Wales in the case of El‑Ali, http://www.refworld.org/docid/3d1c73c04.html (“UNHCR intervention in El‑Ali”). 11 General Assembly, Fifth Session, Official Records, Third Committee, 344th Meeting, 11 December 1950, paras 24‑25 (Mr. Baroody, Saudi Arabia); para. 28 (Mr. Lesage, Canada); paras 29‑30 (Mr. Davin, New Zealand); para. 39 (Mr. Noriega, Mexico); para. 42 (Mr. Raafat, Egypt), UN doc. A/C.3/SR.344, available through the UN Official Document System database at http://www.un.org/en/documents/index.html. Also cited in UNHCR inter‑vention in El‑Ali, note (10) above. 12 See Goodwin Gill and McAdam, note 5 above, 152. The importance of this complementarity is reflected in the current practice of the two agen‑cies. Since 2005, UNHCR and UNRWA have held annual high‑level meetings in order to address issues of common concern; and since 2010, a joint working group has been established which remains in regular contact and meets twice per year. 13 Statute of the Office of the United Nations High Commissioner for Refugees, (“Statute”), 14 December 1950, A/RES/428(V), http://www.refworld.org/docid/3ae6b3628.html, paragraphs 1 and 7(c). With regards to the differences between the language of the Statute (“continues to receive”) and that of Article 1D (“at present receiving”), UNHCR interprets the phrases as having the same meaning. “For reasons which are not clear (but which may have been dictated by time constraints), the draft Convention refugee definition was not amended to bring it into line with the UNHCR Statute before being sent on to the Conference of Plenipotentiaries.” Goodwin‑Gill and McAdam, note 5 above, p. 154. See also on the issue of UNHCR’s Mandate, UNHCR, Note on the Mandate of the High Commissioner for Refugees and his Office, October 2013, http://www.refworld.org/docid/5268c9474.html.14 See for example, General Assembly Resolution 58/95 of 17 December 2003 and, more recently, UNGA Resolution 71/91, Assistance to Palestine refugees: Resolution adopted by the General Assembly, 22 December 2016, A/RES/71/91: http://www.refworld.org/docid/586cbe334.html. 15 It is important to note that UNRWA has had a protection mandate from its inception. Nevertheless, the protection function has grown over time and has increased since 2010 with the adoption of a protection policy and the development of protection tools and standards. See UNRWA, Pro‑tecting Palestine Refugees, 2015, http://www.refworld.org/docid/5703647f4.html and https://www.unrwa.org/what‑we‑do/protection. However, UNRWA “does not own, administer or police the camps, as this is the responsibility of the host authorities.” https://www.unrwa.org/palestine‑ref‑ugees. See also note 48 below. 16 For latest UNRWA figures, see: http://www.unrwa.org/.



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B. Ratione personae: Personal scope of Article 1D

7. The following groups of persons fall within the personal scope of Article 1D:

Palestine refugees: Persons who are “Palestine refugees”17 within the sense of UN General Assembly Resolution 194 (III) of 11 December 194818 and subsequent UN General Assembly Resolutions and who, as a result of the 1948 Arab‑Israeli conflict, were displaced from that part of Mandate Palestine which became Israel, and who have been unable to return there.

Displaced persons: Persons who are “displaced persons” within the sense of UN General Assembly Resolution 2252 (ES‑V) of 4 July 1967 and subsequent UN General Assembly resolutions, and who, as a result of the 1967 conflict, have been displaced from the Palestinian territory occupied by Israel since 1967 and have been unable to return there.19 It also includes those persons displaced by “sub‑sequent hostilities”.20

Descendants: “Descendants” refers to all persons born to Palestine refugees or displaced persons, as defined above.21 Based on principles of gender equality and non‑discrimination on the basis of sex, as well as the principle of family unity, these descendants, whether they are descended through the male or female line,22 would be considered to fall within the purview of Article 1D.23 This includes descendants who were born outside of and who have never resided in UNRWA’s areas of operation, where the criteria for the application of Article 1D are met.

8. For the purposes of these Guidelines, the term “Palestinian refugees” is used to encompass “Pales‑tine refugees”, “displaced persons” and “descendants” or one or more of these groups, whose position has not been definitively settled in accordance with relevant resolutions of the UN General Assembly.

9. Not all Palestinians fall within the class of Palestinian refugees to whom Article 1D applies.24 Such cases are to be assessed in the same manner as other claimants for refugee status, under Article 1A(2).

C. Sequential reading

10. The two paragraphs in Article 1D are to be read jointly and operate sequentially. This means that decision‑makers need to assess (i) whether the applicant falls within the class of Palestinians to whom the protection of the 1951 Convention does not apply because he or she “is at present receiving” the protection or assistance of UNRWA; and if so, (ii) whether such an applicant is nonetheless included under the second paragraph owing to the cessation of that protection or assistance.

17 The term “Palestine refugees” has never been expressly defined by the General Assembly. However, for early work on interpreting the term, see UN Doc. W/61/Add.1, Addendum to Definition of a “Refugee” Under paragraph 11 of the General Assembly Resolution of 11 December 1948, 29 May 1951 which is to be read with its Note by the Principal Secretary, UN Doc. A/AC.25/W/61, https://unispal.un.org/DPA/DPR/unispal.nsf/0/418E7BC6931616B‑485256CAF00647CC7. UNRWA’s operational definition of the term “Palestine refugee” for registration purposes has evolved over the years as it was initially a subcategory of persons who were ‘in need’. Since 1984 it has been “persons whose normal place of residence was Palestine during the period 1 June 1946 to 15 May 1948, and who lost both home and means of livelihood as a result of the 1948 conflict.”18 The UN General Assembly resolved in para. 11 of Resolution 194 (III) that “the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date” and that “compensation should be paid for the property of those choosing not to return and for loss of or damage to property”. 19 UN General Assembly Resolution 2452 (XXIII) A of 19 December 1968 called for the return of “displaced persons”, as reiterated by subsequent UN General Assembly resolutions on an annual basis, https://unispal.un.org/DPA/DPR/unispal.nsf/0/0F32DC9EB80EE553852560DF004F1352. See, also, Bolbol, (note 2 above) para. 47: “[I]t cannot be maintained, as an argument against including persons displaced following the 1967 hostilities within the scope of Article 1D of the Geneva Convention, that only those Palestinians who became refugees as a result of the 1948 conflict who were receiving protection or assistance from UNRWA at the time when the original version of the Geneva Convention was concluded in 1951 are covered by Article 1D of that convention […].”20 See UN General Assembly Resolution A/RES/37/120, 16 December 1982, which extended UNRWA’s mandate to those displaced by subsequent hostilities; http://www.un.org/documents/ga/res/37/a37r120.htm.21 UNRWA’s Consolidated Eligibility and Registration Instructions, 1 January 2009, (“UNRWA’s CERI (2009)”), http://www.refworld.org/docid/520cc3634.html, at Part III(A)(1), p. 3, provide that “Palestine Refugees, and descendants of Palestine refugee males, including legally adopted children, are eligible to register for UNRWA services.” Descendants of women who are Registered Refugees and are (or were) married to husbands who are not registered refugees are not considered to meet UNRWA’s Palestine refugee criteria, but they (including legally adopted children) “are eligible to register to receive UNRWA services”, Part II(A)(2). 22 Including descendants of a Palestine refugee woman and a non‑refugee male within the first paragraph of Article 1D of the 1951 Convention is com‑patible with the principle of non‑discrimination on the basis of sex and avoids serious consequences for family unity. Further, the approach adopted in these Guidelines, which recognises descendants of Palestinian refugees, is consistent with UNHCR’s general approach to protracted refugee situations in which children born to refugees in exile are registered as refugees until a durable solution has been found.23 Some of these descendants may have acquired the nationality of their non‑refugee/non‑Palestinian parent, hence an individual assessment will be required, which also considers the principle of family unity.24 For example, a Palestinian originally from the West Bank, who was never displaced.

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D. “Exclusion clause” of Article 1D(1): Palestinian refugees receiving or eligible to receive the protection or assistance of UNRWA

11. “Exclusion” from protection under the 1951 Convention pursuant to Article 1D(1) does not mean that persons within the scope of this provision are not to be considered refugees. Quite the contrary, the express intention of the drafters was to provide a separate regime for an entire class of persons already receiving specific benefits from UN organs or agencies. Thus, Article 1D is clear‑ly intended to cover all Palestinian refugees “falling under the mandate of UNRWA, regardless of when, or whether, they are actually registered with that agency, or actually receiving assistance.”25 To interpret Article 1D(1) as an exclusion clause in that sense would be incorrect, as it would ignore the character of Article 1D as a “contingent inclusion clause.”26 It would also be inconsistent with the object and purpose of the 1951 Convention and, in particular, with the aim of Article 1D itself, which is to ensure continuity of protection for a class of persons who are already recognised as refugees by the international community.

12. Moreover, the object and purpose of the 1951 Convention and of its provisions relating to Pal‑estinians require that the words “at present receiving” in the first paragraph of Article 1D are un‑derstood to mean (i) “persons who were and/or are now receiving” protection or assistance, or (ii) who are eligible for such protection or assistance. Those Palestinians who are eligible are described at paragraph 8. By capturing both those actually receiving, as well as those eligible to receive the protection or assistance of UNRWA within Article 1D(1), the continuing refugee character of Pal‑estinian refugees is acknowledged, as is their entitlement to protection.

13. In UNHCR’s view, it would be incompatible with the object and purpose of Article 1D to re‑move from its scope those Palestinian refugees who have not accessed UNRWA protection or as‑sistance, despite being eligible, but are nonetheless in need of 1951 Convention protection under the second paragraph in Article 1D.27 Such a narrow interpretation of the first paragraph of Article 1D would actually result in the denial of protection for many Palestinian refugees, whose refugee character is already established, creating gaps in the protection regime.28

14. Moreover, similarly situated persons who were displaced as a result of the same conflict would be subject to different treatment depending on whether they availed themselves of assistance or not and depending on where they fled. Some would be examined under Article 1D while others would be examined under Article 1A(2). An interpretation which differentiates these similarly situ‑ated persons is “clearly unreasonable and in conflict with the intentions of the drafters.”29

15. In the same vein, interpreting Article 1D in a way that would not cover those Palestinian refugees who are eligible for UNRWA’s protection or assistance would lead to the duplication of mandates in respect of the same refugee population between UNHCR and UNRWA inside UNRWA’s areas of oper‑ation. In UNHCR’s view, this same interpretation also guides the interpretation of the provision outside UNRWA’s areas of operation. Thus, the provision ought to be interpreted in a way that reflects the complementary mandates of the two agencies, both within and outside UNRWA’s areas of operation.30

16. It would also be incorrect to read Article 1D as applying only to those persons who were Pal‑estinian refugees in 1951.31 This would run contrary to the intentions of the Convention’s drafters,

25 Guy Goodwin Gill and Susan M. Akram, ‘Brief Amicus Curiae’, Palestine Yearbook of International Law, 2000/2001, Vol. XI, 185, at p. 236. See also, AD (Pal‑estine), note 2 above, where the scope of Article 1D was found to encompass persons “who have not in fact availed themselves of protection and assistance which they are otherwise eligible to receive.” Para. 160 and see paragraphs 150‑153 for a discussion of the difficulties of the “actually availed” approach. 26 See footnote 5.27 This interpretation is distinct from the position taken by the CJEU in Bolbol, (note 2 above), where only those who had “actually availed” them‑selves of that protection or assistance were considered to fall within the first paragraph of Article 1D, based on a “clear reading” of Article 1D (para. 51). For the purposes of how this should be approached and reconciled as a matter of European law, UNHCR notes that Article 3 of the Qualification Directive provides that Member States may introduce or retain more favourable standards for determining who qualifies as a refugee. Member States are thus recommended to adopt the more favourable interpretation put forward by UNHCR, which is more in line with the object and purpose of Article 1D.28 See UNHCR, Note on UNHCR’s Interpretation of Article 1D of the 1951 Convention relating to the Status of Refugees and Article 12(1)(a) of the EU Qual‑ification Directive in the context of Palestinian refugees seeking international protection, May 2013, http://www.refworld.org/docid/518cb8c84.html.29 Brenda Goddard, ‘UNHCR and the International Protection of Palestinian Refugees’, (2009) 28 Refugee Survey Quarterly, 475 at 493.30 AD (Palestine), note 2 above, para. 159. 31 The “historical” argument that Article 1D is limited only to those persons who were Palestinian refugees in 1951, accepted by the United Kingdom Court of Appeal in El‑Ali note 6 above, was rejected by the CJEU in Bolbol, note 2 above, paras 47‑48. See also the rejection by Advocate General Sharpston, paras 62, 65‑68, in her Opinion in Bolbol, http://eur‑lex.europa.eu/legal‑content/EN/TXT/?uri=CELEX%3A62009CC0031.

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who sought to ensure continuity of protection for the specific class of persons addressed in Article 1D until their position was definitively settled, a need which continues not only for those who were Palestinian refugees in 1951, but also persons who were displaced by the 1967 conflict as well as their descendants. Moreover, it disregards the critical change effected by the 1967 Protocol, which removed the temporal limitation on the 1951 Convention, with the aim, as expressed in the Preamble, of ensuring “equal status” for “all refugees covered by the definition in the Convention irrespective of the dateline 1 January 1951.”32

E. “Inclusion clause” of Article 1D: the protection or assistance has ceased for any reason

17. Palestinian refugees (see paragraph 8) benefit from 1951 Convention protection under Article 1D(2) when the protection or assistance of UNRWA has ceased. Read in light of its ordinary meaning, considered in context and with due regard to the object and purpose of the 1951 Convention,33 the phrase “ceased for any reason” is not to be construed restrictively. As noted in jurisprudence, exclu‑sion from the 1951 Convention of Palestinian refugees by way of Article 1D “was intended to be conditional and temporary, not absolute and permanent.”34

18. The application of the second paragraph of Article 1D is not, however, unlimited.35 Protection under the 1951 Convention does not extend to those applicants who, being outside an UNRWA area of operation, refuse to (re‑)avail themselves of the protection or assistance of UNRWA for reasons of personal convenience.36 That said, the reasons why one has left an UNRWA area of operation (for example, for work or study purposes, or for protection reasons) is not of itself deter‑minative. What is pivotal is whether the protection or assistance of UNRWA has ceased owing to one or more of the “objective reasons” for leaving or preventing them from (re)availing themselves of UNRWA’s protection or assistance as set out in paragraph 22 below (see also paragraph 26ff on sur place claims). If a person has no objective reasons for not (re)availing themselves of UNRWA’s protection or assistance, then such protection or assistance cannot be regarded or construed as having ceased within the meaning of the second paragraph of Article 1D when a Palestinian refugee can safely enter the UNRWA area of operation.

19. The inclusion assessment needs to be carried out not only having regard to UNRWA’s mandate and operations, but also to the circumstances of the individual and to relevant and up‑to‑date country of origin information (COI).37

Objective reasons bringing the applicant within the second paragraph of Article 1D

20. While the drafters of the 1951 Convention envisaged primarily the application of the second paragraph in the event of the termination of UNRWA’s mandate, the phrase “for any reason” is suf‑ficiently broad to include circumstances other than the cessation of UNRWA’s mandate. The travaux préparatoires of the 1951 Convention confirm this interpretation.38 Importantly, where the drafters intended to limit the scope of provisions in other parts of the Convention, they did so explicitly and outlined the possible exceptions.39

32 1967 Protocol, preamble, third paragraph, note 1 above. See also, Goodwin‑Gill and McAdam, note 5 above, p. 158, footnote 110.33 Vienna Convention on the Law of Treaties, article 31, note 7 above. 34 AD (Palestine), note 2 above, para. 99f. 35 “Mere absence from such an area or a voluntary decision to leave it cannot be regarded as cessation of assistance.”, El Kott, note 9 above, para. 59. 36 See, El Kott, note 9 above, paras 49‑51 and 59‑63. See also by way of analogy regarding personal convenience, Statute of the Office of the United Nations High Commissioner for Refugees, paragraphs 6(ii)(e) and (f), note 13 above. 37 “Country of Origin Information (COI) is information which is used in procedures that assess claims to refugee status or other forms of international protection. COI supports legal advisors and persons making decisions on international protection in their evaluation of: the human rights and security situation; the political situation and the legal framework; cultural aspects and societal attitudes; the humanitarian and economic situation; events and incidents; as well as the geography in claimants’ countries of origin (or, in the case of stateless people, countries of former habitual residence) or countries of transit. To qualify as COI it is essential that the source of the information has no vested interest in the outcome of the individual claim for international protection.” Austrian Centre for Country of Origin and Asylum Research and Documentation (ACCORD), Researching Country of Origin Information: Train‑ing Manual, October 2013, http://www.refworld.org/docid/5273a56b4.html. 38 See for example the statement of the Egyptian delegate, Mr. Raafat, General Assembly, Fifth Session, Official Records, Third Committee, 344th Meet‑ing, 11 December 1950, para. 13, UN doc. A/C.3/SR.344. See also the views of the French delegate, Mr. Rochefort, at the Conference of Plenipotenti‑aries, Summary of the Second Meeting, 20 July 1951, UN doc. A/CONF.2/SR.2, p. 27. Both documents are available through the UN Official Document System database at http://www.un.org/en/documents/index.html.39 For example, the drafters of the 1951 Convention set out, in a clearly limited fashion, the list of grounds on which refugee status may be considered to have ceased under Article 1C of the 1951 Convention. See, El Kott, note 9 above, para. 57.

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21. Objective reasons,40 which bring an applicant within the second paragraph of Article 1D, include:

(i) Termination of the mandate of UNRWA41

a. The termination of UNRWA’s mandate would in principle require a resolution of the United Nations General Assembly. This element would consequently apply to the entire class of Pal‑estinians, rather than particular individuals.

(ii) Inability of UNRWA to fulfil its protection or assistance mandate

b. The discontinuation of UNRWA’s protection or assistance, which would apply to all Palestini‑ans, would need to be determined to have occurred as a matter of fact, in an area of operations or on a country‑wide basis. This might occur if, notwithstanding the continued existence of the agency, it were to become impossible for UNRWA to carry out its mission.42 Evidence of this circumstance may be established, for example, by a resolution of the United Nations General Assembly, annual reports of UNRWA, statements by UNRWA that it has discontinued its ac‑tivities, or other evidence brought forward by the applicant.43

c. “Protection or assistance” are alternatives: an applicant is not required to establish that both the protection and the assistance of UNRWA have ceased. In relation to the discontinuation of assistance, however, the applicant would need to establish that the assistance pursuant to UNRWA’s mandate has ceased.44

(iii) Threat to the applicant’s life, physical integrity, security or liberty or other serious protection‑related reasons

d. Palestinian refugees – as refugees already recognized by the international community via various UN General Assembly resolutions – are not required to establish individually that their treatment constitutes persecution within the meaning of Article 1A(2) of the 1951 Convention or that they meet the other requirements of the refugee definition in that paragraph, in order to benefit from Article 1D.45 That said, a Palestinian refugee at risk of persecution in the sense of Article 1A(2) would clearly fall within the second paragraph of Article 1D.

e. Beyond this, there is a range of threats that may compel a Palestinian to leave UNRWA’s area of operation, with the result that UNRWA’s protection and assistance would cease for him or her. In UNHCR’s view, both group‑based and individualised threats would qualify as circumstances beyond the applicant’s control. Examples of group‑based threats would include armed conflict or other situations of violence, such as civil unrest, widespread insecurity or events seriously disturbing public order.46 Threats of a more individualised nature, which could also compel a Palestinian to leave an UNRWA area for reasons beyond his or her control, would include sexual or gender‑based violence, torture, inhuman or

40 In El Kott, the CJEU considered that “objective reasons” included “reasons beyond the person’s control” (i.e. independent of their volition), note 9 above, para. 58. UNHCR considers that there is no significant difference between objective reasons and reasons beyond the person’s control, except as noted in paragraphs 26‑28 in relation to sur place claims, where the CJEU’s judgment needs to be read with particular care as it did not apply to sur place claims. 41 See note 2 and paragraph 7 above. 42 El Kott, note 9 above, para. 56. The suspension of non‑core services for a short period of time would not suffice. 43 A comparison can be made with the UNCCP, which continues to exist but reports annually to the General Assembly that it is not able to carry out its mandate: see note 3 above.44 “Given the long‑standing and continuing reality of funding deficits, should UNRWA continue to exist but in fact be unable to provide effective protection or assistance due to a lack of funding, there is no reason in principle why this should also not qualify as a cessation of activities under Article 1D, which expressly contemplates cessation ‘for any reason’ as activating the inclusion clause”. AD (Palestine), note 2 above, para. 172. See also, El Kott, note 9 above, paras 63, 65. 45 See for example the Belgian Conseil du Contentieux des Étrangers, (Council of Alien Law Litigation) decision, which states that the recognition of the refugee status is not based on the existence of a real risk to personal safety, but is automatically granted based on Article 1D given that the per‑son concerned is already a refugee and has demonstrated that he or she can no longer benefit from UNRWA assistance. Arrêt No. 144 563, Belgium: Conseil du Contentieux des Étrangers, 30 April 2015, http://www.refworld.org/cases,BEL_CCE,5963b1794.html. 46 See, UNHCR, Guidelines on International Protection No. 12: Claims for refugee status related to situations of armed conflict and violence under Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees and the regional refugee definitions, 2 December 2016, HCR/GIP/16/12, http://www.refworld.org/docid/583595ff4.html.

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degrading treatment or punishment, human trafficking and exploitation, forced recruitment, severe discrimination,47 or arbitrary arrest or detention.

f. Where any of these above‑mentioned threats emanate from the authorities, protection under Article 1D would be required. Similarly, where the authorities are unable or unwilling to pro‑vide protection against threats emanating from non‑State actors, protection under Article 1D(2) would also apply. A case‑by‑case assessment is necessary to determine the application of Article 1D in these cases.48

(iv) Practical, legal and/or safety barriers preventing an applicant from (re)availing him/herself of the protection or assistance of UNRWA

g. Practical barriers include obstacles which prevent access the UNRWA area of operation, for ex‑ample, because of border closures.

h. Legal barriers would include absence of documentation allowing the individual to travel to, or transit through, or (re)enter and reside in the relevant UNRWA area of operation. Where the authorities refuse (re)admission or the renewal of travel or other requisite documents, the second paragraph of Article 1D would be satisfied. An applicant would not, however, benefit from protection under the 1951 Convention pursuant to Article 1D(2) if he or she were to seek to frustrate his or her (re)admission and stay by refusing to co‑operate, for example, in acquiring documents.49

i. Barriers relating to safety or personal security which prevent (re)availment could include dangers en route such as minefields, factional fighting, shifting battle fronts or the threat of other forms of harassment, violence or exploitation, preventing the applicant from being able to return safely. Up‑to‑date information on the realistic prospect of being able to re‑avail oneself of the protection or assistance is required. The feasibility of (re)availment cannot be assessed in the abstract.

j. Although Article 1D focuses on the cessation of the protection or assistance of UNRWA, the situation in the State in whose jurisdiction UNRWA is operating will not only be relevant, but may be determinative of the need for 1951 Convention protection. For example, the host State or au‑thorities – not UNRWA – will control whether a Palestinian refugee will be permitted to (re)enter their territory and (re)establish him/herself there, including whether he or she is able to obtain the necessary legal documentation establishing a right to stay in the State or territory.50 The risk facing the applicant may emanate, for example, from the authorities directly. These assessments are to be based on reliable and up‑to‑date information, and special care needs to be exercised where the situation is fluid or unclear.

k. No State can safely assume that a Palestinian refugee will be able to access the protection or assistance of UNRWA in an area of operation where they have never resided, or other than that in which he or she was formerly residing. As such decision‑makers should not assess the lawful‑ness of return in relation to an UNRWA area of operation to which the individual has no previous connection. That would impose unreasonable and insurmountable obstacles on applicants, and ignore the general workings of the State‑based system of international relations and State sover‑eignty. Moreover, consistent with general principles of international refugee law, the assessment as to whether the protection or assistance of UNRWA has ceased for a person previously resident in an UNRWA area is to be made vis‑à‑vis the UNRWA area of operation where the applicant was

47 This would often but not always include systematic or a pattern of consistent discrimination. See UNHCR, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees, April 2001, http://www.refworld.org/docid/3b20a3914.html, at para. 17. It also includes measures of discrimination which “lead to consequences of a substantially prejudicial nature [… for example,] serious restrictions on the right to earn a livelihood, the right to prac‑tise religion, or access to normally available educational facilities.” UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, December 2011, HCR/1P/4/ENG/REV. 3, http://www.refworld.org/docid/4f33c8d92.html, (“UNHCR Handbook”) para. 54.48 The provision of services by UNRWA is not relevant for this assessment. Non‑state actors, including international organisations, do not have the attributes of a State, and are not in a position to provide protection and enforce the rule of law in the same fashion as a State. 49 Article 2 of the 1951 Convention notes that every refugee has duties to the country in which he or she finds himself or herself, which require in par‑ticular that he or she conform to its laws and regulations as well as to measures taken for the maintenance of public order.50 For example, in relation to the West Bank, the position of the Israeli authorities will be determinative. Likewise, for passage across the border to Gaza from Egypt, permission from Egypt is likely to be required, noting that at some times, the border is closed.




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previously residing.51 The assessment is not to be made against each of UNRWA’s areas of operation but to a single UNRWA area of operation.52

22. The circumstances listed above are alternative, not conjunctive, such that depending on the case at hand, one or more of the aforementioned circumstances may be present, bringing the ap‑plicant within the scope of Article 1D(2).53 The evidentiary aspects of establishing the existence of the above‑mentioned circumstances are dealt with in Part III.

Personal circumstances of applicant

23. The personal circumstances of the applicant are relevant to the determination of whether one of the objective reasons exists to justify the application of the second paragraph of Article 1D. Thus, each claim must be determined on its individual merits, enabling consideration of factors that are specific to the applicant.54 These personal circumstances may include age, sex, gender, sexual orientation and gender identity, health, disability, civil status, family situation and relationships, social or other vulnerabilities, ethnic, cultural or religious considerations, political and social links and compatibility, language abilities, and any past experiences of serious harm and its psychological effects.

Internal relocation

24. The protection or assistance of UNRWA will not be considered to have ceased if an individual is able to access and receive protection or assistance from UNRWA elsewhere in the same UNR‑WA area of operation. For example, if a camp is destroyed by an armed attack and the protection or assistance of UNRWA is as a matter of fact available elsewhere within another part of that country or territory, and the individual has access to that protection or assistance, then the sec‑ond paragraph of Article 1D would not be satisfied without additional factors. However, it cannot be expected that the applicant relocate (or be returned) to a different country or territory where he or she has no previous connection.55

Sur place protection needs

25. A sur place claim arises after arrival in the country of asylum, either as a result of the applicant’s activities in the country of asylum or as a consequence of events, which have occurred or are occurring in the applicant’s country of origin since their departure.56 The recognition of sur place claims of Palestinian refugees under Article 1D is in line with general principles of international refugee law applicable to Article 1 of the 1951 Convention that accept sur place refugee claims, recognizing that changes in the country of origin whilst abroad may make them a refugee.57 For example, should the mandate or activities of UNRWA cease as described in paragraph 22 above while the individual is outside UNRWA’s area of operation, she or he would qualify for 1951 Con‑vention protection under Article 1D.

26. Although “ceased for any reason” does not generally include reasons of mere personal con‑venience for refusing to (re‑)avail oneself of the protection or assistance of UNRWA, (as noted in paragraph 19 above),58 it is not relevant whether the applicant departed in the first place on a 51 See also, El Kott, note 9 above, para. 77: “… the person concerned ceases to be a refugee if he is able to return to the UNRWA area of operations in which he was formerly habitually resident because the circumstances which led to that person qualifying as a refugee no longer exist”.52 This is supported by the language of the CJEU in El Kott which repeatedly uses the expression “area of operation” in the singular when referring to the scope of the assessment to be carried out. El Kott, note 9 above, paras 49, 50, 55, 58, 61, 62, 63, 64, 65. 53 While the inclusionary aspects of Article 1D(2) will be established where an applicant has been forced to leave UNRWA’s area of operation where his/her personal safety is at serious risk and if it is impossible for UNRWA to guarantee his/her living conditions in accordance with that organi‑zation’s mission, the applicant is not required to establish both. In El Kott, (note 9 above), the CJEU accepted in the context of the facts before it, that such circumstances “will” fall within the second paragraph of Article 1D (para. 65). The CJEU did not however exhaust other circumstances in which such protection or assistance would be considered to have ceased, as this will depend on the case at hand. An interpretation that requires both would lead to perverse results. For example, if an applicant’s personal safety is at serious risk, the assistance provided by UNRWA in the form of cash or food rations would be irrelevant to their need for protection. 54 An exception would be in circumstances where UNRWA has ceased to operate as an agency (see paragraph 22(i) above).55 UNHCR, Guidelines on International Protection No. 4: “Internal Flight or Relocation Alternative” Within the Context of Article 1A(2) of the 1951 Con‑vention and/or 1967 Protocol Relating to the Status of Refugees, 23 July 2003, HCR/GIP/03/04, http://www.refworld.org/docid/3f2791a44.html. 56 UNHCR Handbook, note 47 above, paras 94‑96. 57 Ibid.. There is no reason to apply a different approach to Palestinian applicants under Article 1D.58 This interpretation is closely aligned with State practice which has not generally accepted automatic entitlement to Article 1D by reason simply of being outside an UNRWA area of operation.


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voluntary basis from an UNRWA area of operation (for example, for study or work purposes). They are still eligible to benefit from the 1951 Convention pursuant to Article 1D should they meet its crite‑ria.59 A careful examination of the circumstances in each case would be required.

27. A person may become a refugee sur place in a country in which she or he claims asylum, as a result of his or her own actions, such as associating with refugees already recognized, or ex‑pressing political views in his or her country of residence.60 Politically active Palestinian refugees who may attract attention because of their beliefs or activities, and who may even do so at great personal risk to themselves or their families, cannot be required to cease such activities as a pre‑condition for protection under Article 1D; that would undermine the object and purpose of the 1951 Convention overall.61

F. Automatic or “ipso facto” entitlement to the benefits of the 1951 Convention

28. When it is established that UNRWA’s protection or assistance has ceased for any of the rea‑sons mentioned in paragraph 22, the Palestinian refugee is automatically or “ipso facto” entitled to the benefits of the 1951 Convention,62 provided Articles 1C, 1E or 1F of the 1951 Convention do not apply [see Parts G, H, and I below].63 The term “ipso facto” would be entirely redundant if the provision merely meant that a Palestinian refugee could apply for international protection in accordance with the general rules and in the same way as all asylum‑seekers via Article 1A(2) of the 1951 Convention.64

29. The phrase “benefits of this Convention” in the second paragraph of Article 1D refers to the sub‑stantive rights contained in Articles 2 to 34 of the 1951 Convention and which are attached to being a refugee, as defined in Article 1 of the 1951 Convention. The term “benefits” cannot mean simply access to asylum procedures for determining refugee status as Article 1 does not itself contain any benefits – it simply defines who is and who is not entitled to have access to those benefits.65 This interpretation is also supported by the equally authentic French version of Article 1D, which uses the expression “bénéficieront de plein droit du régime de cette convention.” They benefit by operation of law and “as of right” once they fulfil the criteria in Article 1D.66

30. Palestinian refugees protected under Article 1D are entitled to receive the same rights, benefits and standards of treatment as other refugees recognized under Articles 1A(1) or 1A(2), so there is no more favourable treatment provided to Article 1D refugees than other refugees. They each enjoy the benefits of the Refugee Convention set out in Articles 2 to 34.67

59 El Kott, note 9 above, para. 59.60 UNHCR Handbook, note 47 above, para. 96.61 By analogy with the general position that one cannot be required to conceal or be discreet about a protected characteristic, see X, Y, Z v Minister voor Immigratie en Asiel , C‑199/12 ‑ C‑201/12, European Union: Court of Justice of the European Union, 7 November 2013, http://www.refworld.org/docid/527b94b14.html; UNHCR Observations in X, Y and Z, 28 September 2012, http://www.refworld.org/docid/5065c0bd2.html; Bundesrepublik Deutschland v Y and Z, Judgment of the Court (Grand Chamber) of 5 September 2012 http://www.refworld.org/pdfid/505ace862.pdf; RT (Zimbabwe) and others v Secretary of State for the Home Department, [2012] UKSC 38, United Kingdom: Supreme Court, 25 July 2012, http://www.refworld.org/docid/500fdacb2.html. 62 See UNHCR, Written Intervention before the Court of Justice of the European Union in the case of El Kott, 27 October 2011, para 4.3, C‑364/11, http://www.refworld.org/docid/4eaa95d92.html and UNHCR, Oral intervention before the Court of Justice of the European Union in the case of El Kott and Others v. Hungary, 15 May 2012, C‑364/11, http://www.refworld.org/docid/4fbd1e112.html, paras 10, 12‑14. (“UNHCR Oral intervention in El Kott”). UNHCR’s views were accepted by the Court in El Kott, note 9 above, paras 80‑81. 63 “There can be no doubt that the category of refugees considered in the present Paragraph is subject to the exclusion clauses contained in Article E and F, as well as to the cessation clauses enumerated in Article 1C of the Refugee Convention.” Grahl‑Madsen, note 5 above, 142. 64 UNHCR Oral intervention in El Kott, note 63 above, para. 13. Although a common interpretation of this provision is that it only entitles the person to be considered under Article 1A(2) and that they must still meet the well‑founded fear standard, “this is not the correct interpretation of Art. 1D as read in light of its history and protection purpose. The plain meaning of the term ‘ipso facto’ holds that no other criteria need to be used for assessing the situation – they are by the fact of that precondition alone de jure refugees under the 1951 Convention and should thereby be entitled to refugee status in any State party to the 1951 Convention.” Mutaz M. Qafisheh and Valentina Azarov, ‘Article 1D’, in A. Zimmermann (ed.), The 1951 Convention relating to the Status of Refugees and its 1967 Protocol: A Commentary, (Oxford University Press, 2011), 537‑569, at 567. 65 Ibid.. UNHCR Oral intervention in El Kott. This view is supported by the use of the term “benefits” elsewhere in the Refugee Convention, for example in Articles 5 and 7, in a context that can only mean the substantive rights conferred by the Refugee Convention. Nor can the term benefits merely refer to non‑refoulement. 66 El Kott, note 9 above, paras 70‑71. See also, AD (Palestine), note 2 above, para. 192.67 See, UNHCR Oral intervention in El Kott, para. 16, note 70 above. The discrimination argument was roundly rejected by the CJEU in El Kott, note 9 above, para 78.

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G. Applicability of Article 1C

31. The 1951 Convention will cease to apply under certain conditions, clearly defined in Article 1C.68 Article 1C applies in principle to Palestinian refugees benefiting from the 1951 Conven‑tion on an individual basis. Although a literal interpretation of Article 1C, which explicitly ref‑erences only refugees recognised under “Article 1A” of the 1951 Convention, would render it inapplicable to Article 1D Palestinian refugees, such an interpretation no longer corresponds to the reality that a number of Palestinian refugees have acquired the nationality and protection of other countries,69 such that they no longer need the protection of the 1951 Convention. Notwithstanding the special situation of Palestinian refugees provided for by Article 1D, the provisions of Article 1C may be applied, account being taken of the considerable passage of time, changing circumstances, the practice of States, and the fact that many Palestinians have established themselves in other States, often acquiring a new nationality. This interpretation of the 1951 Convention is necessarily without prejudice to the meaning of ‘the Palestinian people’, as well as to the meaning of the terms ‘refugees’ and ‘displaced persons’ as used in various UN General Assembly and UN Security Council Resolutions.

32. Despite the decision by the UN General Assembly in 201270 to accord non‑member observer State status in the United Nations to Palestine, Article 1D should continue to be interpreted and applied as outlined in these Guidelines and until the situation of Palestinians is definitively settled in accordance with General Assembly resolutions. It is premature to consider that the protection of the 1951 Convention should cease to apply to Palestinian refugees, merely by reason of Palestine having been accorded non‑member observer status.

H. Applicability of Article 1E

33. The fact that some Palestinian refugees have been living in countries where they exercise rights and obligations ordinarily attached to the possession of nationality may render Article 1E71 appli‑cable to their case. In the case of children and other descendants of Palestinian refugees who may be enjoying rights and obligations identical to those of nationals of another country, consideration of the application of Article 1E of the 1951 Convention would also be required.72

34. Historically, States party to the League of Arab States Protocol for the Treatment of Palestini‑ans in Arab States (“Casablanca Protocol”)73 have pledged to provide a range of rights on par with their own citizens to Palestinian refugees, but many remain unimplemented in practice. Close scrutiny of the situation on the ground prior to applying Article 1E on the basis of the Casablan‑ca Protocol would be required.

68 UNHCR, “The Cessation Clauses: Guidelines on their Application”, 26 April 1999, http://www.refworld.org/docid/3c06138c4.html and UNHCR, Guidelines on International Protection No. 3: Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refu‑gees (the “Ceased Circumstances” Clauses), 10 February 2003, HCR/GIP/03/03, http://www.refworld.org/docid/3e50de6b4.html. 69 “A great number of Palestinian refugee residing in Jordan have acquired Jordanian citizenship in accordance with the relevant provisions of the Nationality Law of 4 February 1954. Citizenship has also been obtained by a number of Palestinian refugees residing in Iraq, Kuwait, Lebanon, Saudi Arabia and other countries in the region. As a result of the acquisition of a new nationality such persons are no longer to be considered as refugees for the purpose of the 1951 Convention” [depending on whether the relevant criteria set out in Article 1C paragraph 3 are met]. Takkenberg, note 5 above, 127 (footnotes omitted). 70 UN General Assembly Resolution 67/19, Status of Palestine in the United Nations, 29 November 2012, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/67/19. 71 “The Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.” Article 1E, 1951 Convention, note 1 above.72 See UNHCR, Note on the Interpretation of Article 1E of the 1951 Convention relating to the Status of Refugees, March 2009, http://www.refworld.org/pdfid/49c3a3d12.pdf.73 League of Arab States, Protocol for the Treatment of Palestinians in Arab States (“Casablanca Protocol”), 11 September 1965, http://www.refworld.org/docid/460a2b252.html. The Casablanca Protocol provides for the right of employment on par with citizens, residency rights, travel documents, the right to leave and to return. However, it has not been consistently implemented and was weakened in 1991 with resolution 5093 that allows States to implement the Protocol “in accordance with the rules and laws in force in each state”. See also, Goddard, note 29 above, 507.

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I. Applicability of Article 1F

35. Persons with respect to whom there are serious reasons for considering that they have committed acts within the scope of Article 1F of the 1951 Convention74 are not entitled to international protec‑tion as refugees.75

III. PROCEDURAL AND EVIDENTIARY ISSUES

A. Individual assessment

36. Although Article 1D recognizes a specific class of refugees receiving the protection or assistance of a United Nations entity other than UNHCR, the application of Article 1D will normally be assessed on an individual basis.76

B. Time of assessment

37. The assessment is whether, at the time the individual claim is considered, the protection or assis‑tance of UNRWA has ceased such that the applicant is unable or unwilling to (re)avail him/herself of that protection or assistance for an objective reason beyond his/her control.

C. Burden and standard of proof

38. In applications for refugee status or protection, including those under Article 1D, the burden generally rests on the applicant to produce evidence as far as possible to support his or her state‑ments and to substantiate the claim. The applicant is required to give a truthful account of facts relevant to his or her claim so far as these are within his or her own knowledge, and insofar as there is information that is available to him or her and which s/he can reasonably be expected to provide to the decision‑maker. A decision‑maker shares the duty of ascertaining the facts relevant to the determination.77

39. Article 1D requires an examination of whether (i) the applicant falls within the category of Pal‑estinian refugees who is receiving or eligible to receive the protection or assistance of UNRWA and (ii) the protection or assistance of UNRWA has ceased for any reason. These are questions of fact. The decision‑maker has a duty to inquire into the matter and to take into account all of the available evidence.

40. The assessment must consider whether, at the time the individual’s claim is considered, he or she is unable to or unwilling to (re)avail himself or herself of the protection or assistance of UNRWA for a reason beyond his or her control. Inquiries also need to be made in relation to the circumstances in the State or authority, as well as the applicant’s individual circumstances (see paragraphs 22(j) and 25).78 The burden of proof lies on the decision‑making authorities where it is asserted by them that the applicant could relocate internally within the same UNRWA area of

74 Article 1F states that the provisions of the 1951 Convention “shall not apply to any person with respect to whom there are serious reasons for consid‑ering that: a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; b) he has committed a serious non‑political crime outside the country of refuge prior to his admission to that country as a refugee; c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”75 UNHCR, Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refu‑gees, 4 September 2003, HCR/GIP/03/05, http://www.refworld.org/docid/3f5857684.html. See also, Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003, http://www.refworld.org/docid/3f5857d24.html. 76 A group‑based approach, such as the prima facie recognition of refugee status, may be appropriate in certain circumstances: see UNHCR, Guidelines on International Protection No. 11: Prima Facie Recognition of Refugee Status, (“Prima Facie Guidelines”), 24 June 2015, HCR/GIP/15/11, http://www.refworld.org/docid/555c335a4.html. 77 UNHCR Handbook, note 47 above, paras 196‑205; UNHCR, Note on the Burden and Standard of Proof in Refugee Claims, 16 December 1998, http://www.refworld.org/docid/3ae6b3338.html.78 The ability of Palestinian refugees to move from one area of operation to another is contingent upon the recognition or granting of legal status by the host government of the receiving area, and the individual circumstances of the Palestinian refugee. This is also the case for a person who was never resident in an UNRWA area of operation.


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operation, or absent other factors, be able to enter safely and with appropriate legal documen‑tation per paragraph 22(iv) above.

UNRWA registration

41. Being registered by UNRWA or possessing UNRWA documentation would serve as conclusive, albeit not necessary, proof of falling within the scope of Article 1D(1).79 In the absence of such doc‑umentation or other relevant proof, adjudicators may rely on other evidence to this effect, includ‑ing through, for example, the applicant’s own statements, the affidavits of others or the production of other relevant documentation.80 Evidence of registration with UNRWA should not, however, be considered as a necessary precondition to recognition.81 “Displaced persons” for example, are not “registered” in UNRWA’s registration system, however, UNRWA keeps “due records” of such persons.82 Lastly, by definition, a person who, despite being eligible to receive UNRWA protection and assistance, has not received such, may not be registered nor have such proof. They may nev‑ertheless still fall within Article 1D.

Evidence of objective reasons bringing the applicant within the second paragraph of Article 1D

42. The evidence in relation to the inclusionary part of the assessment may come from a variety of sources. The applicant may provide evidence that is relevant in his or her own statements. A statement by UNRWA that it has discontinued activities in a given area of operation would be clear evidence that it had done so. Evidence from other sources that UNRWA had discontinued its activ‑ities could also be persuasive. It is important however that the applicant is not required to produce or point to any such possible statement.83 If such a requirement were to be imposed, it would place an undue burden on UNRWA, one which it may not be able to satisfy in every case, owing to, for example, resources or logistical reasons or those of confidentiality.84 Finally, the applicant should not be required to approach UNRWA directly, given the practical difficulties involved.85 There may also be circumstances relevant to the particular applicant about which UNRWA would not know and could not provide relevant information.

D. Individual Procedures

43. Fair and efficient procedures for the determination of refugee status under the 1951 Conven‑tion need to take particular account of claims relating to Article 1D, with clear identification of the issues relevant to Palestinians.

44. When requesting asylum, applicants must be given adequate time to exercise their rights, in‑cluding, inter alia, the right to be informed, in a language which they understand, of the procedure to be followed, of their rights and obligations during the procedure, the possible consequences of not complying with their obligations and not cooperating with the authorities, the right to receive the services of an interpreter, to consult in an effective manner a legal adviser or other counsellor. Access to legal advice is paramount to a fair asylum procedure and often constitutes a prerequisite to ensure effective access to legal remedies.86

79 UNRWA, CERI, 2009, Section III.A.1, page 3, note 21 above. The CJEU found that “[w]hile registration with UNRWA is sufficient proof of actually receiving assistance from it, it has been explained in paragraph 45 above that such assistance can be provided even in the absence of such registra‑tion, in which case the beneficiary must be permitted to adduce evidence of that assistance by other means.” Bolbol, note 2 above, paras 46 and 52.80 Special consideration would need to be given to descendants of Palestinian refugee women married to persons other than Palestine refugees registered with UNRWA, since they are not under UNRWA’s CERI, registered as Palestine refugees but may be otherwise recorded for the purpose of receiving services. See, note 21 above. 81 “Registration with UNRWA is of a declaratory nature, confirming rather than establishing that an individual falls under UNRWA’s mandate.” Takkenberg, note 5 above, 100.82 UNRWA, CERI, 2009, Section III.B ‑ “Persons eligible to receive services without being registered in UNRWA’s registration system” at page 6, note 21 above.83 Whether protection or assistance has ceased is a matter of fact susceptible of proof in the normal way.84 Here an analogy can be made with UNHCR’s position regarding information relating to mandate recognition, see submission in I. A. v. Secretary of State for the Home Department: Case for the Intervener, 27 October 2013, United Kingdom Supreme Court, UKSC2012/0157, http://www.refworld.org/docid/52a098e34.html.85 Although verification that a person is a registered “Palestine refugee”, or is recorded as receiving UNRWA services, can be sought from UNRWA.86 UNHCR, Public statement in relation to Brahim Samba Diouf v. Ministre du Travail, de l’Emploi et de l’Immigration pending before the Court of Justice of the European Union, 21 May 2010, http://www.refworld.org/docid/4bf67fa12.html, paras 12‑16.

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45. For Palestinians who do not come within the personal scope of Article 1D, an assessment under Article 1A(2) would then normally proceed.

46. Even though protection pursuant to Article 1D is normally carried out in individual procedures, there may be situations in which a group of Palestinian refugees may be recognised on a prima facie basis. For example, where the mandate of UNRWA is terminated in one of UNRWA’s areas of opera‑tion, or comes to an end for reasons beyond its control, such as an international or non‑international armed conflict, they would be considered – as a group – not to be receiving the protection or assis‑tance of UNRWA.87

47. Where an applicant raises both a refugee and a statelessness claim, the latter made pursuant to the 1954 Convention relating to the Status of Stateless Persons, it is important that each claim is as‑sessed and that both types of status are explicitly recognized.88

48. Best State practice ensures that Palestinian refugees recognised under Article 1D are properly recorded and separately registered in national asylum statistics.

E. Regional refugee instruments

49. Palestinian refugees are, like all other asylum applicants, entitled to apply for refugee status pursu‑ant to any applicable regional refugee instruments, should they be in countries in which these apply.89

F. Refugee status and subsidiary or complementary protection

50. Palestinians found not to fall within the scope of Article 1D could have their claims for protection considered under Article 1A(2). Should they not fall within either provision, they are entitled, like all other asylum applicants, for any national or regional forms of subsidiary or complementary protection; and also to benefit from protection under international human rights law.

87 UNHCR, Prima Facie Guidelines, note 82 above. 88 UNHCR, Handbook on Protection of Stateless Persons, 30 June 2014, http://www.refworld.org/docid/53b676aa4.html, para. 78.89 See, Organization of African Unity, Convention Governing the Specific Aspects of Refugee Problems in Africa, 10 September 1969, 1001 UNTS 45, http://www.refworld.org/docid/3ae6b36018.html; Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 22 November 1984, http://www.refworld.org/docid/3ae6b36ec.html.

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INDEXThe numbers refer to the paragraphs and the letters refer to the Handbook (H) and numbered Guidelines on International Protection (G1 to G13) respectively.

abandoned, see childrenabduction, G1:17‑18, G7:8‑9, 15, G8:22, 26

child, G8:22abortion, G1:13abuse, G1:16, G8:13, 57, 64

by husbands, G2:20child, G8:3, 12, 14, 68gender‑related, G1:18of power, G1:17, G7:8‑9protection from, G8:15reasons for, G1:36sexual, G8:26sexual orientation‑related, G9:1‑2, 20, 22

accelerated proceduresexclusion, G5:31internal flight/relocation alternative, G4:36

acquired rights, G3:22admission

to territory, H:148, 153, G5:5, 16 of aliens, H:191to refugee status determination procedures, H:194

adoption, H:182, G7:20, G8:25adultery, disproportionate punishment for, G6:22Africa

OAU, see Organization of African Unityrelocation, G4:30

age, G6:28, G8:7assessment, G8:7, 75, G10:72

criminal responsibility, see criminal responsibilityfactors, G1:36, G4:25, G6:28, G8:2, 8, 12, 15, 30, 33, 64, 71, 76 ,G9:3, G12:12, G10:58membership of a particular social group, G8:49‑52 persecution, G8:10, 15, 18, 30refugee definition, G8:4relocation, G8:54, 55

age‑sensitiveassistance, G7:47counselling and tracing, G7:49refugee status determination, G8:1, G8:7

agents of persecution, H:65, G1:19‑ 20, G7:21, G9:34‑37, G10:42‑45, G12:28‑30non‑State actors, G1:21, G2:20‑23, G4:7, 15‑17, 38, G7:21, 30, G8:37, G9:35‑36, G10:43,

G12:30State actors, G4:7, 13‑14, G7:21, 24, G8:21, G9:34, G12:28

Americas, H: 20‑21amnesty, H:157, G3:16, G5:23, G10:46armed conflict, H:164‑165, G3:11, G4:27, G5:12‑13, G7:3, 31, 34, G8:3, G10:61, G11:22, see G12,

G13:21, 46and violence, see G12child participation in, G8:19‑23, 52, 59, G10:12, 37‑41, 70‑72

armed forces, H:175, G8:12, 19‑21, 23, 41, 59, 64, G12:28‑29, 54‑55recruitment by, G8:41G10:5‑7, G12:13 see also children

armed group, G12:5, 36Article 1A, see refugee definition

254

Article 1C, see cessationArticle 1D, H:140‑141, G5:4, G11:5, G13Article 1E, see exclusionArticle 1F, see exclusionAsia, G4:30assessment, H:40‑41, 83, G1:7‑8, 32, G3:8‑9, 16, 25, G4:4, 6‑8, 15, 20, 25‑26, 28, 37, G5:2, 17, 31,

G6:18, G7:16, G8:7‑8, 11, 14, 37‑38, 53, 57, 64, G9:13, 18‑19, 21, G10:26, G11:5‑6, 15, 87, G13:36age, see age assessment availability of redress G10:32Cartagena Declaration, under, G12:68, 77, 81credibility, G9: 62‑63, G10: 67individual, need for in context of prima facie recognition, G11:6, 20, 35internal flight or relocation alternatives, G12:41OAU Convention, under, G12:49, 51prima facie recognition, G11:5, 29psychological, G4:26, G8:7‑8risk, G12: 24‑25

asylum, H:110, 159, 194, authorities, G8:3, 74 , G11:29civilian and humanitarian (character), G10:2, G11:22, G12:4, 61country of, H:184, G3:22, 25, G7:34‑35, G7:28, G11:19, 25, 29, 30, 38diplomatic and territorial, H:21granting of, H:20, 24‑25, 160‑161institution of, G5:2, G12:46interviews, G1:36integrity of, G8:58persons entitled to, H:20procedure(s), G3:24, G5:19, G7:45, G8:63, 65, 66, 69‑71, G9:61, G11:38right to, G4:32, G9:7seeking as a last resort, G4:4sur place, see sur place

asylum‑seeker, additional burden, G4:33 cessation of prima facie recognition, G11:38children, G8:2, 4, 6‑9female, G1:3, G1:36 personality, G1:7procedural fairness, G4:35, G5:36stateless, G11:1, 41victims of trafficking, see trafficking

belief, G6:6‑7, 9, 16, 21, 29‑30, 35, G9:41, 63, G10:8, 50, 58, 64‑69, G12:37‑38 freedom of, G6:11, 15, G10:18see also religion

benefit of the doubt, H:196, 203‑205, 219, G5:34, G8:73, G12:93best interests of the child, G6:15, G8:5, 10, 53burden of proof, H:196, 210, G3:25, G4:33‑34, G5:34, G8:73, G9:55, G10:71, G12:93, G13:38‑40

cancellation of refugee status, H:117, 141, G3:1, 4, G5:6, G11:21, 35Caracas, H:21Cartagena Declaration on Refugees (1984), G11:16, G12:3, 6, 61‑85caste, G7:34, G8:12causal link

Convention grounds, G10:48, G12:7, 10, 23, 32‑33, 91gender‑related persecution, G1:20‑21, G9:38‑39non‑State actors, G2:20‑23

255

political opinion, H:81 trafficking, G7:29‑33

crime, H:152cessation, G3, H:30 , G11:7, G12:4, G13:31

ceased circumstances, H:113, 115, 135, 138, G3, G3:1‑2, 7‑10, 18, G11:28clauses, H:31, 33, 111‑116, 118‑119, 125, 129, 133, 137‑138, 143, 187, G3:1, 4, 8compelling reasons, H:113, 135, 137, G3:2, 20‑21, 24, G7:16declaration of, G3:3, 17, 25exceptions, H:88, 136, G3:19‑22, 24, G3:25 fundamental changes/changed conditions, H:135‑136, 141, G3:1, 10, 12‑13, 15, 18general considerations, G3:6‑7of refugee status, G3of UNRWA protection/assistance/mandate, G13:10, 20, 21individual, G3:18interpretation of, G3:18mass influx, G3:23‑24new nationality, H:113, 129‑132procedural issues, G3:25re‑availment, H:118re‑establishment, H:114, 133, 134, G3:1voluntary, H:113‑134, G3:7

Charter of the International Military Tribunal (1945), H:150, G5:10‑11children, G8

abandoned, G8:12, 36, 49‑50, 52asylum‑seekers, G8:2, 4, 6‑9best interests, see best interests of the childchild‑sensitive, G8:1, 4‑5, 7, 13, 27, 75claims by, G10:70‑72convention grounds, G8:40‑42, 45, 47‑48country of origin regarding, G12:92criminal responsibility, see criminal responsibility discrimination, see discrimination exclusion clauses, G5:28, G8:58‑64, see also exclusionfamily unity, H:182, 185, 213fear of persecution, H:213, 215, 218, G8:10‑11, 21, 23, 28, 40

child‑related manifestations of persecution, G8:15‑17child‑specific forms of persecution, G8:3‑4, 8, 13, 18‑36 sexual orientation and/or gender identity, G9:13

female genital mutilation, G6:24, G8:31, 44, 54girl‑child, G1:8, 31, 41, 44guidelines, national, G8:65 identity, G8:12, 49 intersex, G9:10labour, G8: 29‑30of LGBTI parents, G9:10, 24, of Palestinian refugees, G13:33particular social group, see membership of a particular social grouppornography, G7:20, G8:18, 29pregnant, G8:12recruitment, G10:12, 37‑41religion, see religion relocation, G8:53‑57rights, G7:20, G8:5, 13‑14, 26, 34‑36, 70, 77stateless, G8:18, 35street, G8:12, 52surviving, H:33trafficked, G7:2‑3, 8, 11, 19‑20, 32, 34, 38, 47, 49, G8:24‑29, 41, 51, 76

256

unaccompanied, see unaccompanied children under‑age recruitment, G8:4, 13, 18‑23, 41, 44, 52, G10:12, 37‑41, 55, 59, G12:13violence against, G1:27, G8:3, 4, 12‑14, 17‑18, 23, 30, 32‑33, 36, 52

right to protection from, G8:26, 31‑32will of the child, H:219with disabilities, G8:12, 35, 50, 71without parental care, G8:12

citizenship, H:74, 87, 144, G1:27, G7:36, 41‑42, 44civil and political rights, G1:36, G4:28, G6:2, G8:14 civilian population, G5:13, 30, G7:31, G11:22, G12:5, 14, 26, 40, 43, 71 civil law, G2:8coercion, G7:8‑9, G8:64, 70, G9:21, G10:8, 35Committee on the Rights of the Child, G7:20, 49, G8:4‑5, 20, 34, 60common law offence, see crimes(s)compliance, G6:21‑22

non‑compliance G1:12, G6:16, 21concealment, G9:18, 30‑33, 54Conference of Plenipotentiaries, H:5, 25‑26confidentiality, G1:35‑6, G5:33, G7:42, 46, G7:49, G8:70, G9:60, conscientious objection, H:170‑174, G6:25‑26, G10:3‑4, 8‑11, 21, 39, 49‑50, 64, see also religious

persecutionconscription, G8:49, G10:3‑4, 7, 17, 19, 63, 72Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(1984), G1:5, G4:20, G5:9Convention against Transnational Organized Crime (2000), G7:2, 4, 7, 25Convention grounds, H: 66‑67, G10:47‑59, 66, 67, G12:10, 23, 26, 32‑39

contributing factor, G1:20, G7:29, G8:40, see also causal link cumulative, H:53, G1:14, 23, G7:33mutual, G2:4sexual orientation, G9:40‑41see race; religion; nationality; membership of a particular group; political opinionsee also children; gender‑related persecution

Convention on Action against Trafficking in Human Beings (2005), G7:10Convention on the Elimination of All Forms of Discrimination Against Women (1979), G1:5Convention on the Political Rights of Women (1953), G1:5Convention on the Prevention and Punishment of the Crime of Genocide (1948), G5:10Convention on the Reduction of Statelessness (1961), G7:6, 41, 43Convention on the Rights of the Child (1989), G1:5, G7:11, 20, G8:5‑8, 12‑13, 19‑20, 22, 26, 32, 34,

41, 52, 60, G10:12Convention Relating to the Status of Stateless Persons (1951), G7:6, 41, G13:47conversion, see religious persecutioncounselling

age‑sensitive, G7:49 legal, G7:45 of refugees, G3:25 psycho‑social, G1:36, G7:46

country of origin, H:153, 164, 166, G1:8, G4:5‑7, 38, G6:34, G7:25‑26, G11:25, G12:10, 21, 47‑51, 81‑82, G13:25assessment of, G3:8, 25, G4:7, G11:41, G12:24‑25, G13:19authorities of, H:50, 83, 96, G6:35, G7:17, 21‑22, 32circumstances / conditions / situation in, H:37, 42, 53, 63, 95, 112, 136, 218, G1:7, G3:1, 6,

8, 17‑18, 23‑24, G4:37, G6:14‑15, G7:27, G8:4, 11, G11:1, 5, 13, 17, 29, 31, 36‑37, 41, G12:6, 31, 44, 81‑82

contact with, H:121, G5:33definition, G3:1information, G1:36, 37, G4:37, G6:35, G8:11, 74 , G9:64, 66, G10:13, 39, 63, G12:90‑92laws, H:43

257

LGBTI persons in, G9:25, 28, 30, 32, 36‑37, 57, 63, nationality of, H:87 protection of, H:123, G3:18, 20return to/re‑establishment in, H:133, G3:1, 7, 12, 20, G6:36, G7:5, 16, 50, G8:56, G10:41,

G12:27“safe country of origin”, G9:59unlawful departure or unauthorized stay outside, H:61

country of refuge/asylum, H:12, 133, 146, 150, 153‑154, 158, 184, G5:3, 5, 16, G7:28, G9:57, G11:19, 25, 29, G13:25

courts, H:192, G2:6, G3:16, G12:15, 23, 77credibility, H:41‑42, 93, 195, 204‑205, G1:36, G6:28‑33, 34, G8:73, 75, G9:11, 62‑63, G10:17, 62,

64, 67, 69, G11:35crime(s), H:153, 156, 158, G5:5, 21, G7:7, G10:40, G12:19

against humanity, H:146, 149‑150, 162, 178, G5:3, 10, 13, 24, G7:3, G10:22, 27, 29, G12:14‑15against peace, H:146, 149‑150, 162, 178, G5:3, 10‑11, 18, 24, G10:22by children/minors, G8:59, 62, 64common, H:56‑58, 151‑152, 154, G1:12, G5:2, G8:58expiation of, G5:23hijacking, H:158‑159honour, G1:36, G6:24, G8:33, 44motivation, G5:15nature of, H:156‑158,non‑political, H:150, 155, 157, 159, 179, G5:3, 14‑16organized, G7:31of aggression: G10:22political, H:151‑152, see also political opinionserious, H:154‑155, G5:2, 4, 17, 27, 31terrorist/terrorism, G5:15, 17, 25‑26war, see war crimes

criminal responsibility, G5:21 age of, G5:21, 28, G8:60‑61defence/self‑defence, G5:22, G8:22individual, G5:18, 23, G8:62, 64, G10:23

cumulativeConvention grounds, see Convention groundsdiscrimination, see discrimination effect, H:201, G4:25element, H:55persecution: G9: 16‑17, 24, G10: 15, G12: 11, 18‑19

debt bondage, G8:29deception, G1:17, G7:8‑9Declaration on Territorial Asylum (1967), H:25Declaration on the Elimination of All Forms of Intolerance and Discrimination based on Religion or

Belief (1981), G6:2, 12Declaration on the Elimination of Violence against Women (1993), G1:5, G8:32Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minor‑

ities (1992), G6:2deportation, H:145, G8:56, G12: 14derivative status, G8:9, 66deserter/desertion, H:167‑169, 171, G6:25, G10:1, 3‑4, 31, 46, 69

as expression of political opinion, G10:51‑54as “particular social group”, G10: 58punishment for, H:167, 169, 171, G6:26, G10:5, 14‑15, 18, 38

detention, G8: 17, G9:2, 22, G10:50, G12:13, G13:21diplomatic, H:12

asylum, H:21, 88

258

protection, H:3, 146, G7:43relations, H:166

disability/disabilities, G4:25, G13:23children with, G8:12, 35, 50, 71mental, G8:64

discretion, see concealmentdiscrimination

children, G7:19, G8:3, 5, 10, 12, 14, 18, 27, 34, 36, G10:42cumulative, G1:16, G3:20, G4:35, G12:11forms of / measures, H:53‑55, 72, G1:14‑15, G6:12, G8:36

political opinion, H:83, G1:32racial, H:68‑69religious, H:72, G6:12, 17, 19, 26sexual orientation, G1:3, 16‑17

gender, G1:3, 15, G12:26minorities, G3:11military service, G10:11, 15, 32, 50, 55, 58non‑discrimination, H:64, G8:34, G9:5, G10: 14, G12:46persecution, as, H:54‑55, G1:14‑15, 31‑32, G2:20, G6:17, G8:10, 36, G9:17, 20, G10:15, G12:11sexual orientation, G9:2‑3, 6, 10, 17, 20, 22, 25, 30, 37, 59trafficking victims, G1:18, G7:18, 19, G8:27 women, G7:19

discriminatoryacts/practices, H:65, G1:16, 17, 19, G2:20, G8:36application, H:59, G6:15, 16laws, G6:18, 24, G8:17, G9:26, 29measures, H:55, 63, G6:22, G8:14results, G6:19treatment, G6:24, G9:25, 33

divorce, H:120, 187, G8:17, G9:63DNA testing, G8:76, G10:72domestic abuse, G2:22domestic violence, G1:3, 9, 15

children, G8:18, 32, 33, 52, 54LGBTI individuals, G9:35

dowry‑related violence, G1:9draft‑evader/evasion, see deserter/desertiondrugs, G8:64drug trade, G8:29, G10:53due process, G5:36 durable solutions, G3:6, G6: 36, G12:46, 61

economic migrants, H:62‑64economic motivation, G7:31, 34economic, social and cultural rights, children, G8:14, 34, 36economic survival, G4:24, G9:56education, G8:30

access to, G8:35‑36girls, G8:36 lack of, G8:72level of, G1:36, G6:32, G8:12, 45, 64religious, G6:21, 30right to, G8:14, 34, 41, G9:2, 24

educational background, G4:25, G6:28 facilities, H:54, G1:14, G6:17, G8:57opportunities, G7:45, G8:14

259

elections, G3:13, 16eligibility, certificate of, H:33 element

armed, G5:30, G11:22common, G2:15, G9:17Cartagena refugee definition, G12:68, 76, 81core, G8:34, 35cumulative, H:53, 55fear, G9: 28, G11: 15, G12:21, 34harm, G9:13material, G5:21, G10: 62mental, G5:21OAU Convention, G12:49‑50, 56objective, H:38, 42, 205, 206, 211, G8:11of refugee definition, H:37, G1:8, G7:6, 16, 25, G10:35political, H:64, 152risk, G12:23subjective, H:37, 38, 40, 41, 52, 206, 211, G8:11

entry permit, H:122ethnic, G6:12

clashes, H:91cleansing, G4:31, G12:13‑14, 42considerations, G4:25, 30, G13:23conflict, G12:36dimensions, G10:61, G12:35grounds, G8:36group(s), H:63, 68, 74‑75, 91, G1:24, 27, G2:17, G3:14, G4:30, G7:32, 34, 36, G8:41, G12:33, 37

persecution of, H:91, G12:1identity, G1:24minorities, G6:2, G8:41 origin, H:144

ethnicity, G2:6, G3:25, G6:7, 10, 27, G7:32, G8:41, 43, G9:3, G10:32, 55, 57, G11:10, G12:33, 39Europe, H:20, 108

events occurring in, H:109‑110European Convention on Human Rights and Fundamental Freedoms (1950), G1:5evidence, H:44, 48, 195‑197, 203‑205, G1:25‑26, 36‑37, G3:13, 15, G4:14‑15, 31, 33‑34, G5:26,

31, 35‑36, G6:34, G7:50, G8:11, 38, 74, G9:28, 36, 64‑66, G10:24, 53, 62, G11:4, 15, 18‑21, 24, 34‑35, 40, G12:42, 77, 89‑93, G13: 38‑40, 42

exceptions, G6:26, G8:68, G13:21see also cessation

exclusion, G5, cancellation, H:117, G3:4, G5:6, G11:21clauses, H:31, 33, 117, 140‑141, G5:1, 3, G10:22

Article 1D, H:142‑143, G5:4, G13: 11‑16Article 1E, H:144‑146, G5:4, G13:33‑34Article 1F, H:147‑163, 177‑179, G3:4, G2:5, G5:1, 3, 4, 18, 23‑26, 31, 35, G8:58‑64,

G11:18, G13:35children, see childrenconsequences, G5:8‑9crimes, see crimescriminals, H:147dependent(s), G5:29, H:188inclusion before exclusion, H:31, 177, G5:31interpretation of exclusion clauses, H:149, 179, G5:2mass influx, G5:30nature/rationale, H:180, G5:2, G8:58prima facie recognition, G11:18‑19

260

procedural issues, G5:31‑36, G8:62‑64 proportionality, G5:15, 24, 26, G8:62, 64 responsibility, see criminal responsibilityrevocation, G5:6status determination, H:30, G5:7United Nations, see United Nationswomen, G2:19

ex‑combatants, G5:20Executive Committee (of UNHCR)

children, G8:3gender, G1:2procedure (status determination), H:192‑193

Executive Committee Conclusionscessation, G3:5, 8, 22, 25 children, G8:3, 18durable solutions, G3:6 exclusion clauses, G5:2 internal protection /flight/ relocation alternative, G4:36stateless, G7:43women, G1:2, 30, 36, G3:5

exploitation, G4:10, G13:21children, G7:47, G8:4, 12‑14, 25‑26, 33, 52consent, G7:11forms of, G7:15labour, G10:33sexual, see sexual exploitationtrafficking, G7:1, 4, 8‑11, 27, 32, 34, 38, 47, G8:25‑26vulnerability to, G7:32, G8:12

expression, freedom of, G3:16, G9:24, 31expulsion, H:145, 154, G5:4external aggression, H:22, G4:5, G12:44, 48, 54, 74extradition, H:21, G5:15, 32

fact‑finding, H:200‑201family

background, H:41, 216, 218, G4:25, G7:20, G8:12, 22, 28, 56, G9:4, G13:23cessation, H:187, G2:7, 20, 22, 25derivative status, H:184‑187, G8:66 descendants, G13:8exclusion, H:188, G9:30extended, G8:8gender roles, G9:50law, G9:24members, G11:24, 34, G12:33of applicant, H:172, G1:36, G2:20, G7:17, G8:8‑9, 17ostracism / rejection, G1:18, 35, G7:18‑19, 48, G8:12, 27particular social group, see membership of a particular social group persecution, H:136, G7:21, G8:18, G9:10, 23, 35, 64, G12:28planning, G1:3, 13, G8:18, 50 political opinion, G10:54reasons, H:62religious convictions, G10:49reunification, G8:68support, G3:22, G4:29, G9:25tracing, G8:68 violence, G1:3, G8:18, G9:63, G10:42

family unity

261

children, G8:2, H:182, 185principle of, H:181‑188, 213, G13:7protection, H:181‑182, G5:29right to, H:181

famine, H:39fear, see well‑founded fearfemale genital mutilation (FGM), G1:3, 9, 11, 36, G6:24, G8:4, 18, 31, 44, 54, 67force, use of, H:175‑177, 179, G1:13, G7:8‑9forced labour, G7:3, 8‑9, 15, G8:14, 18, 27, 29, G10:31, 33forced marriage, G1:36, G8:20, 33, 67forced recruitment, G8:20‑21, G10:3, 12, 42, G13:21foreign domination, H:22, 165, G4:5fraud, G1:17, G7:8‑9, 41

genderarmed conflict, relation to, G12:12, 26‑27, 33dimension, G1:12 discrimination, G10:32element, G1:16, G9:13expression, G9:9, 57identity, G9:62‑63, G12:92, G13:7, 23inequalities, G9:23guidelines, national, G1:35, 38of interviewers/interpreters, G9:60markers, G9:53related‑claims, G1:1, 3, 10, 15, 20, 33, 35‑36 related/based violence, G1:2‑3, 9, 16, 18, 36‑37, G7:19, 48 G8:3‑4, 31, 64, G9:2, G12:27, G13:21roles, G1:32‑33, G8:44, G9:13, 15, 41, 50see also sex; women

gender sensitivity/sensitiveassessments, G8:75, G10:72assistance, G7:45, 47country of origin information, G8:74confidentiality, G1:35implementation, G1:38interpretation, G1:1‑2, 4‑6, 8, G8:4interviews, G1:36, G6:27, G8:71procedural issues, G1:35‑37, G3:25

gender‑related persecution, G1, G9abortion, G1:13adultery, disproportionate punishment for, G6:22armed conflict, relation to, G12:1, 11, 26‑27causal link, G1:20‑21cessation, G3:25Convention grounds, G1:22‑34, G12:39definition, G1:3, G12:11dress‑codes, G1:17evidence, G1:37, G7:50failure of State protection, G4:15, G6:24, G8:37, G8:54female genital mutilation, see female genital mutilationharmful traditional practices, see harmful traditional practicesmen, G1:3nature of, G1:3refugee definition, G1:1, 6sexual exploitation, see sexual exploitation sexual orientation, see sexual orientationsexual violence, see sexual violence

262

trafficking, see trafficking well‑founded fear, see well‑founder fearwomen, G1:1, 3‑5, 8, 12, 17‑18, 25‑27, 30‑31, 33, 36, G6:24, 30, G7:3, 19, 32, 34, 38, 47‑48,

see also membership of a particular social group; trafficking

Geneva Conventions for the Protection of Victims of War (1949), H:164, G5:10genocide, G5:10, 13, G12:13‑14geographic limitation, H:7, 15, 17, 22girls, see children grounds, see Convention groundsgroup, see ethnic groups, membership of a particular group, vulnerable groupsguardian(ship)

child, H:214, G7:49, G8:39, 66, 69, 75‑77, G9:60, G10:72family unit, H:182mentally disturbed persons, H:210

Hague Convention, No. 28 on the Civil Aspects of International Child Abduction (1980), G7:20harm, G1:6, 9, 15, 17, 18, 25, 36, G2:20, 22, G4:7, 13‑20, 28, G5:14, 22, G6:36, G7:14‑17, 27, 44,

G8:10, 14‑18, 22, 30, 32, 36, 77 fear, see well‑founded fearpsychological, G8:16, 33risk of, G7:17, G8:12, G9:32, G10:46, G11:10, G12:22, 28, 51, 91

harmful traditional practices, G1:5, 36, G6:15, 24, G8:31, 33hate speech, G6:15hazardous work, G8:30health

access to, G6:17, G8:35, 41, G12:19child, G8:12, 13, 30, 57factors, G4:25, G8:12, G13:23protection of, G6:15right to, G8:34, 41, G9:2, 24risks to, G4:20, G9:25, 33, G12:12sex‑reassignment surgery (forced), G9:21

hijacking, H:158‑159, G5:27HIV, G8:52, G9:3homelessness, G8:12homosexuality/homosexual, see sexual orientationhonour killings/crimes G1:36, G8:44, G9:10, 23host country, H:16, 166, G7:17, G8:60 housing, G7:45, G8:35, G9:24‑25human dignity, H:69, G2:6, 9, G8:75, G9:45, 47, 60, G10:57, 72, G12:56, 78, 83humanity, lack of, G8:56human rights

abuses of, G9:1assessment, G3:8, 13‑14, 16, 25convictions, G10:68defenders G9:40, 66, G12:38definition of, G8:31denial of, G9:10, 24derogation from, G12:16, 79enjoyment of, G8:27exercise of, G5:14, G6:17, G8:48 guarantee of, G4:24, G5:24, G8:58, G12:41instruments and guidelines, G3:16, G5:9, G7:22international law, G1:5, 9, G2:3, G4:20, 32, G6:2, G7:12, G8:7, G9:5‑7, G10:5‑7, 8, 21, 26‑27,

G12:16, 71, 83, G13:51norms, G1:13, G2:3, 6, G6:2, G9:44, G10:56, G11:27

263

respect for, G3:16, G4:24, 28, G9:56, G12:42principles, H:60, G4:4, G5:15restrictions on, G10:15standards, H:59, G1:5, 10, G3:16, 22, G4:28, G6:2, 16, G8:3treaty, G8:5violations of, H:51, 68, G1:5, 13, G3:11, G5:17, 20, G7:3, 4, 14, 15, 17, 44, 47, 55, G8:7, 10,

13‑14, 20, 29, 31, 64, G9:16, 21, 26, 65, G10:14, 36, 38, G11:5, G12:11, 13‑14, 18, 58, 62, 70, 75‑77

see also Universal Declaration of Human RightsHuman Rights Committee, G3:15, G6:2, 4, 15, G10:8human rights law, G1:13, G3:22

international, G1:5, G6:2, 4violations of, G5:20,

human trafficking, see trafficking

identitycertificate of, H:33child of, see childrendocuments, G7:42ethnic, G1:24national, G9:50religious, see religion sexual orientation, see sexual orientation

immigration officer, H:192implementation of instruments/laws/standards, H:12, G4:32, G6:18, G8:5, G12:25impunity, G1:15, G9:2, 24incarceration, G1:18, G7:15incest, G8:33inclusion

clauses, H:30‑110, 176, G5:31Article 1D, G13: 17‑19

criteria, H:177 family unit, H:185gender, G1:2presumption of, G11: 40, refugee definition aspects, G10:2, G12:3

individual procedures (refugee status determination), G11:40‑41, G13:46inhuman or degrading treatment, G1:18, G5:9, G7:47, G8:56, G9:7, 21‑22, G10:14, 31, G12:13, G13:21injustice, H:56insanity, G5:21institutional care, G8:57intention, H:63, 119, 123, 128, G8:14, G9:39

of the parties/drafters, G13:5, 11, 14, 16to exploit, G7:10

inter‑ethnic conflict, G7:36internal flight/relocation alternative, G4

accessibility, G4:10‑12armed conflict, application to, G12:40‑43assessment, G4:6‑8burden of proof, G4:33‑35Cartagena refugee definition, G12:85children, G8:53‑57concept, G4:1‑4country of origin, G4:37hardship, G4:24LGBTI individuals, application to, G9:51‑56non‑State actors, G4:15‑17, G10:60‑61

264

OAU Convention refugee definition, G12:60presumption, G4:14procedures, G4:36reasonableness, G4:22‑32, G8:55, G13:24religious persecution, G6:13serious harm, G4:18‑21state protection, G4:7, 15, 16, G8:54, 56

international agencies, H:173international community, H:1, 33, 163, 171, G4:32, G5:17, G10:24, G13:2, 11, 21internally displaced persons (IDPs)

relocation, G4:31‑32, G7:5, G12:42International Covenant on Civil and Political Rights, H: 60, 71, G1:5, G3:15, G6:2, 11‑12, 15, 21,

G7:41, 43, G9:21, G10:5, 8, 9, 49International Covenant on Economic, Social and Cultural Rights, H:60, G1:5, G8:34International Criminal Court, G1:5, G5:10G8:19, 60International Criminal Tribunals for the former Yugoslavia and Rwanda, G1:5, G5:10international criminal law, G1:9, G10:6, 21‑22, 26, 36, G12:15international criminal tribunals, G1:5, G5:10, 31, 34international human rights law, see human rights international humanitarian law, G4:32, G5:12, 20, G7:12, G8:19, G10:21‑22, 26‑27, 38, G12:5International Labour Organization Conventions, G7:9international law, G1:5, 9, G4:4, 16, G5:8, 24, 27, G6:15, G7:1, 12, 15, 22, G8:3, 19, 29‑30, 59, G9:7,

G10:1, 5, 7, 12, 14, 17, 23‑27, 30, 33, 67, 72 international protection

Palestinian refugee, G13:2, 28‑30Cartagena refugee definition, G12:66continuity, H:33 discrimination, G1:14 eligibility for, G11:22from forced recruitment, G10:35international courts/tribunals, G12:15needs, H:90, 100, G7:7, 20, 26, G11:28, G12:93prima facie approach/recognition of, G11:9, 26provision of, H:14, G6:36regime, G4:4scope of, G12:81undeserving of, G10:22UNHCR, G11:17, 33vs. national protection, H:106

International Refugee Organization (IRO), H:32‑33international standards, G8:30, G10:5interpreter(s), H:192, G1:36, G6:27, G9:60, G13:45interviewer(s), G1:36, G6:27, 35, G7:46, G9:60invasion, foreign, H:165, see also foreign domination; occupation

jurisdictioncivil law, G2:8common law, G1:20, G2:5territorial, H:88

jurisprudence, G1:5, G8:31, G10:1, 8, G12:76, 79, G13:4, 17

Latin America, H:21, 88See also Cartagena Declaration on Refugees (1984)

law and order, H:175, G7:31League of Nations, H:2legal representative, G8:69, 77, G9:58, 60legal advice, G1:36, G13:44

265

liberation movements, H:175, G8:45LGBTI individuals (concept), G9:10London Agreement and Charter, see Charter of the International Military Tribunal

mandate country authorities, G11:29international criminal courts/tribunals, G12:15refugees, H:16‑17, G11:33refugee status determination, G5:28, G9:61, G11:5UNRWA, G13:7, 12, 16, 20‑21

termination of, G13:22, 26, 47marriage,

arranged, G8:25certificate, H:121credibility determinations, G9:63child/underage marriage, G8:14, 49, G9:23forced, G6:24, G8:18, 33, G9:10, 23, G12:26of mixed religions, G6:12, 24

mass influx, G3:23‑24, G5:30medical

advice, H:208 assistance, G7:45‑46care, G4:29condition, G9:10evidence, G1:36experimentation, G9:21institutions, G9:22professionals, G12:38report, H:208supplies, G12:18, 59testing, G9:65treatment, G7:15, G8:12, G9:10, 53, 63

denial of, G8:35membership of a particular social group, G2, H:77‑79

age, G8:49, 50, 51, 52 armed conflict, relation to, G12:33, 37characteristics, G1:29, G2:11‑13children, G7:32, 38, G8:4, 46, 48‑52, G8:20, G10:59civil law, G2:8cohesiveness, no requirement of, G2:15contentious objectors, G10:58convention grounds, G10:47definition of, G2:10, G8:48, G10:56‑57deserter /draft‑evader, H:169family, G1:33, G2:1, 6‑7, G8:46, 50, 52 , G10:54gender‑related, G1:28‑31, G7:38, G8:14, G10:59, G12:39homosexuals, G2:6, 7, 20human rights, G1:29, G2:11‑12, G7:37, G8:48identity, G1:29, G2:11‑13, G7:37, G8:48, 51‑52 immutable/unchangeable characteristics, G2:6, 9, 12, 13 interpretation of, G2:2non‑State actors, G2:20‑23occupation, G2:1, 6, 9, 13sex, G1:30, G2:6,12, 15sexual orientation, G9:40, 44‑49size, relevance of, G2:18‑19 social class, G2:9

266

social perception, G2:7, 8, 9, 13tribes, G2:1persecution, role of, G2:2, 14, 17 protected characteristics, G2:6, 8, 11, 12, 13trafficking, G7:32, 37‑39 women, G1:4, 20, 30‑31, 33, G2:1, 6‑7, 12, 15, 19‑20, G7:32, 38, G8:50

mentalcapacity, G5:28, G8:61, 63, 64development, H:214, G8:30, 64 disability, G8:11, 64domestic violence, G8:33element, G5:21harm, see harm health, G8:30, G9:24, 33illness, G9:21integrity, G12:83maturity, H:216, G8:61 state, G7:34,’G8:64suffering, G1:9violence, G8:13, 30, 33

mentality, H:214mentally disturbed persons, H:206‑212Mexico, G8:50, G12:61Mexico Declaration and Plan of Action to Strengthen International Protection of Refugees in Latin

America (2004), G12:63Middle East, H:143migrant(s)

economic, H:62‑64smuggling of, G7:4workers, H:95

military service, H:167‑168, 170, 172‑174, G6:25‑26, G10alternative service, G10:3, 8‑9compulsory, G10:3, 4, 32

minority/minoritiesdiscrimination against, G3:11ethnic, H:74, G8:41national, H:74, 76race, H:68religious, G6:12

minors, see childrenMontevideo, H:21Montreal, H:160motivation

draft evasion/desertion, G10:4of flight: G11:17, 27of perpetrator/persecutor, G1:36, G4:15, G12:26

movement,freedom of, G1:18, G12:40of people/refugees (large‑scale), G11:22, 26‑27, G12:1, 61

multiple grounds, see Convention groundsmurder, H:155, G5:13‑14, G8:12, G9:23

Nansen Passport, H:33national law/legislation, H:60, G7:1, G8:60, 63, G13:3

Cartagena refugee definition, G12:63military service, G10:3, 17, 33

national minority, see minority/minorities

267

nationalityacquisition of, G13:31Convention ground, H:74‑76, G9:3, 40, G10:47

children, G8:41draft evaders, H:169, G10:58gender, G1:4, 20, 22, 27trafficking, G7:36vs. membership of a particular social group, H:77

country of, H:6, 22, 87‑91, 98, 106‑107, 113, 118‑122, 124, 134, G3:2, 8, 10, G4:5, G7:26, 43, G8:4, G9:32, G11:19, 25

deprivation of, G7:41dual or multiple, H:106, 107, 117loss of, G8:18military service, relation to, G10:55new, H:113‑114, 129‑132non‑nationals, H:121no nationality, see statelessOAU Convention, G12:44, 47, 49‑51passport, see passportre‑acquisition of, H:113‑114, 126 128rights and obligations of, G13: 34

natural disaster, H:39naturalisation, G3:3neglect, G7:41, G8:13, 68nexus, see causal linknon‑conformity, G9:10, 50, 63non‑derogable rights, G4:28, G12:16, 42non‑discrimination, G7:12, G8:34, G9:5‑6, G10:14, G12:46, G13:7non‑governmental organizations (NGOs), G3:25, G9:51, non‑political crimes, see crimes, non‑politicalnon‑refoulement, see refoulement non‑State actor(s), see agents of persecution

OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969), H:20, 22, 164, G4:5, G5:1, 3, 7‑8, G8:13, G11:5, 16, G12:3, 6, 44‑60, 64, 74

objective element, see elementoccupation, see also invasion

military H:22, 165, G4:5, G11: 5, G12:44, 48, 55professional G10:57, G12: 38

one‑party States, G4:13Organization of African Unity, H:22, G11:5organs, removal of, G1:17, G7:3, 8‑9, 15orphans, G7:20, 38, G8:36, 39, 50, 52, 57ostracism, G1:18, G7:19, 39, G8:27, G9:24

fear of, G7:18

Palestine, H:142‑143, G13:32Palestinian refugees, G13:5, 7‑9particular social group, see membership of a particular social grouppassport

applying for, H:120‑121confiscation of, G1:18issuing authority, H:93Nansen, H:33of convenience, H:93possession of, H:47‑50, 93, 122‑125, 134refusal of, H:99

268

peace, G10:24, G12:78arrangements, G3:14, G12:25crimes against, see crimessituation, G3:11

peacetime, G10:3‑4, G12:10, 78penal sentence, G5:23penalties, H:61, 167, G1:17, 36, G6:19, 26, G9:30, G10:5persecution

agent(s) of, see agents of persecutionarea/place of, H:91, G4:11‑12, 20, G7:25‑28armed conflict, relation to, see G11, G12:12‑13, 18atrocious forms of, H:136, G3:20, G7:16avoidance of, G4:19, G6:13, G9:49basis for, G9:19cumulative grounds for, see cumulative groundsdefinition of, H:51‑53, G1:9, G7:14, G6:12, G8:10, G9:16emergency situations, in the context of, G12:16fear of, see well‑founded fear ender‑related, see gender‑related persecutionimputed political opinion, G10:54past/previous, H:113‑115, 135‑137, G4:24‑26, G7:16, G9:10, 18, 56, G11:28, G12:25prima facie, G11: 15risk of, G10:15, 23, 67, G12:17, 24‑25sexual orientation, G9vs. punishment, H:56‑59vs. prosecution, G6:26

persecutory laws, G1:10‑13personal circumstances, G4:4, 24‑25, G9:56, G10:65, G12:82, G13:23police, H:17, G8:39, G9:34, 36, G10:3, G12:19, 59political offence, see crime(s)political opinion, H:80‑86

armed conflict, G12:37‑39children, G8:4, 45‑47Convention ground, G9:40, 43, G10:47gender, G1:4, 26, 28, 32‑34, 36 , G9:50imputed, G1:26, 32 military service, G10:51‑54no‑demonstration of, H:47punishment/prosecution for, H:84‑86 sexual orientation, G9:50trafficking, G7:40under‑age recruitment, G8:20, 52 vs. economic motive, H:64vs. nationality, H:75

political refugee, G1:33political rights, see civil and political rights pornography, see childrenpoverty, G7:31, G8:14, G12:19prima facie, see G11

presumption, H:93refugee, H:44, G3:23‑24, G12:89, G13:46

privacyprotection of, G7:6, 22right to, G8:70

profit motive, G7:1, 31, 35, G8:25proportionality, see exclusionprosecution

criminal, G12:15

269

fear of, H:58, 167for a common law offence, H:56‑59, G1:12for desertion, see desertion for political offence, see crime(s) immunity from, G10:46lack of, G1:37legitimate, G5:25threat/risk of, G9:27, G10:18see also persecution

prostitution child, G7:20, G8:4, 12, 18, 29forced, G1:18, G7:3, 15, 19trauma, G7:18trafficking, G1:18, G7:3, 15, 19, 47see also sexual exploitation

protectionabsence of, G1:21, G7:30ability and/or willingness, G1:15, 17, G2:22‑23, G6:24, G7:22, G8:28, 37, G9:35, G10:43,

G12:30, 32, 41, 57access to, G13:24adequate, G7:35alternative responses, G11:12, 17child, see also children

military service/recruitment, G10:37needs of, G8:1access to, G8:39services, G8:11, 66

complementary forms of, G4:20, G6:36, G13:50 continuity of, G13: 5, 11, 16diplomatic, H:3, 146, 166, G7:43effective, H:65, 166, G1:19, G2:20, G7:21, 23, 40exclusion from, G5family, see family; family unityguarantees of, G7:36internal flight/relocation, see internal flight/relocation alternativeinternational, see international protectionlack of, H:164meaningful, G4:22 national, H:49, 90, 97, 106, 113‑114, 118‑120, 129‑130, G3:2, 10, G4:16

denial of, H:98‑100re‑availment, see re‑availment of national protectionrefusal of, H:83

regional systems, G12:8, see also, OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969)see also, Cartagena Declaration on Refugees (1984)

restoration of, G3:15‑16state, G9:27, 36‑37, 51, G10:44, 61 stateless, H:101subsidiary, G12:9, G13:50temporary, G11:26‑27United Nations, H:142‑143witness programmes, G7:50see also agents of persecutionProtocol relating to the Status of Refugees (1967), H:9‑12, 16‑17, 19‑20, 22‑23, 25‑26, 29, 35,

164, 183, 185, 189, 191‑194, 220, G4:2, G5:7, G7:5, G8:1, G11: 5Protocol to Prevent, Suppress and Punish Trafficking in Persons (2000), G1:18, G7:2, 6‑9, 11‑12, 22

public order, H:22, 59, 148, G4:5, G9:29, G11:5, G12:44, 48, 56‑59, 62, 66, 70, 78‑79, G13:21punishment, H:56‑60

disproportionate, G1:12, G10:18

270

degrading, G9: 7, G13: 21 children, of, G8:33corporal, G9:2, 26 G10:14for desertion, see desertion for non‑compliance with religious practices, G6:16, 21, 22, 24for political offence, see crime(s) for refusal to perform military service, G10:13‑15for sexual orientation, see sexual orientationrape (as punishment), G9:20see also prosecution

race, H:68‑70 as a compounding factor, G9:3armed conflict, relation to, G12:33children, G8:4, 20, 41draft evaders, H:169, G10:58 gender, G1:24military service, connection to, G10:55trafficking, G7:32, 34religion, G6:10, 27, G8:43vs. membership of a particular social group, H:77 vs. nationality, H:74, G1:27, G7:36

rapearmed conflict, G12:13children born of, G8:12crimes against humanity, G5:13domestic violence, G8:33gender‑related violence, G1:9, G12:26serious non‑political crimes, G5:14sexual orientation, relation to, G9:20

corrective rape, G9: 10,23systematic targeting, G8:41trafficking, G7:15,torture, G1:36

reasonableness test/analysis, G4:7, 8, 22‑30, G8:53, 55of relocation area, G4:37‑38, G9:52‑54, G12:42 see also internal flight/relocation alternative

re‑availment of national protection, H:114, 118‑125, 127, G3:15re‑establishment in State of origin, H:114, 133‑134, G3:1reconciliation/reconstruction, G3:14refoulement, H:192, G3:24, G4:4, G5:4, G11:26refugee definition, H:32, 34, G6:3, G9:1, 6, 34, 38, 46, 48, G10:1‑2, 35, 42, 47, G11:1, 5, 13, 29,

G12:2‑5, 11, G13:21by national origin, H:3regional definitions, G11:5, 16, G12:6‑9, 44, 48, 63, 65‑70, 75‑76, 78, 80, 82, 84‑85, 87

refugee flows, G3:6refugee law, G1:38, G4:2

international refugee law, G6:2, 4, G9:6, G10:22, G12:15, G13:21, 25legal status of refugees, H:12legal treatment of refugees, H:24

refugee ‘sur place’, see sur place refugeesregime change, H:136, G3:14, 17religion

Convention ground, H:71‑73 armed conflict, G12:33conscientious objection/military service, G10:8, 49‑50, 65‑66, gender, G1:25‑26, G12:39trafficking, G7:35 children, G8:42‑44, 47

271

sexual orientation, G9:42‑43, 63definition of, G6:1, 4identity, G6:7‑9, 13, see beliefknowledge of, G6:9, 29‑32prima facie approach, G11:10right to freedom of, H:71, G3:16, G6:2, 11, 20, G6:13

restrictions on, G6:15‑16religious persecution, G6

children, G6:16, 21conscientious objection, H:170‑174, G6:25‑26, G10:49‑50conversion

forced, G6:20motivation, G6:35post‑departure, G6:1, 34‑35

discrimination, H:54, G2:4, G6:17‑19forced compliance, G6:21–22forms of, H:65, 72, G1:14, G6:12 gender, G1:22‑23, G6:24, 27, 34procedural issues, G1:36, G3:25, G6:27‑36

relocation alternative, see internal protection/flight/relocation alternativeremoval of organs, see traffickingrepatriation, H:122, G12:46

application for, H:122spontaneous, G3:12

reprisals, G1:18, 35, G7:17, 19, 28, 39, 48, G8:28, G10:61fear of, G1:35, G8:72see also trafficking impact of, G8:27

resettlement, G6:35, G7:28responsibilities

criminal, see criminal responsibilitiessupervisory, see UNHCR

retribution, fear of, G8:23, 70, G10:15, 30, 34return

ability to, G13:7, 21children, of, G8:23, 27consequences of, G1:32, G6:36, G8:64, G10:13, 46, 63country of original/nationality, G9:18, 32, G10:41, G12:27forcible, G4:8generation of tension, G3:12lawfulness of, G13:21place of relocation, G9:56prior permission to, H:50 precondition of, G3:17protection against, G5:9refugee definition, H101‑105right to, G7:43victims of trafficking, G7:22, 43

revocation, G3:4, G5:6, G11:7Rome Statute of the International Criminal Court, G1:5, G8:19

safeguards discriminatory, G6:22procedural, G1:38, G5:31, 36

for children, G8:7, 65, G10:12, 70for claims based on sexual orientation, G9:60

safety, see securitySecond World War, H:5, 147, 150

272

securitycompanies/forces/groups, G10:42, G12:28external, G12:56, 78failure to ensure, G7:31incidents, G12:71international, H:148, G5:17 national, H:148, G5:33, 36 physical, G3:15, G9:21 prima facie approach, relation to, G11:12relocation, G4:27, 29safety and, G3:15, G4:24, 27, G5:36, G7:22, G8:67, G9:56, G10:31, G12:41, G13:21sense of, H:135 services, G3:16, G10:3social, G8:34 threats to, G12:61‑62, 66, 68, 70, 81‑83, G13:21

separated children, see unaccompanied/separated childrenservitude, G7:3, 8‑9, G10:14, 31, 33, 35sex

definition of, G1:3, 5factor, as, G4:25, G6:28 interpreter, of, G1:35, G7:46non‑discrimination, on the basis of, G13:7persecution specific to, G1:9, 16reassignment surgery, G9:10, 21same‑sex, see sexual orientationslaves, G10:40, 59 see also slavery, sexualwork, G9:25vs. gender, G1:3see also membership of a particular social group

sex trade, G7:3, 34sexual assault, G1:36, G9:60sexual enslavement, G7:15sexual exploitation

children, G8:4, 25‑27, 33trafficking for the purpose of, G1:18, G7:3, 8, 9, 19, 38, 47

sexual orientation, see G9gender‑related persecution, G1:15‑17, G6:34homosexuality/homosexual, G1:3, 5, 16‑17, 30, G2:1, 6–7, 20, G12:92, G13:23see also transgender/transsexual/transvestite

sexual services, G6:24, G8:20, 44sexual violence/abuse, G1:2, 3, 9, 24, 27, 36‑37, G3:20, G7:48, G8:12, 22, 33, 52, G9:10, 20, 35, 60,

G10:59, G12:13, 26‑27, G13:21Sierra Leone, Special Court, G8:19, 60slavery, G8:29

sexual, G10:31, 33, G12:26trafficking, G7:2, 3, 9

smuggling, G7:4, 7social cleansing, G8:12social exclusion, G8:27social group, see membership of particular social groupsocial mores, G1:3, 12, 30, 36, G8:51standard of proof, G5:35, G10:13, G13:38‑40state obligations

economic, social and cultural rights, G8:34exclusion, H:145, G5:8international humanitarian law, G8:19limitations, H:7, 108

273

statelessness, G7:41state protection, see protectionstatelessness,

children, G8:18, 35country/countries of former habitual residence, H:104deprivation of nationality, G7:41lack of documentation, G4:12, G7:42‑44loss of nationality, H:127no nationality, H:101, 137, 139, G3:2, 10refugees, H:101‑102, 105, 133

cessation, H:137‑139relocation, G4:12trafficking, G7:41‑44UNHCR mandate, G7:43‑44

status, H:12‑13, 77, 131, 145, 184, 195, G1:3, G2:6, G3:1, 3, 6, 22, 25, G4:12, 29, G6:36, G8:2, 52, 63conscientious objector, G10:46declaratory nature of, H:28derivative, see derivative statuseconomic,G9:3, 10“equal status”, G13:16non‑member observer, G13:33of Palestinian refugees, G13:5provisional, G11:7

statutory refugees, H:4, 32‑33, 136stay arrangements, G11:26‑27sterilization, G1:13street children, G8:12, 52subjective element, see elementsupervisory responsibility, see UNHCR sur place refugees H:83, 94‑96, G6:1, G7:25, G9:57, G11:25, G12:31, 52, 69, G13:25‑27

temporary protection, G3:23‑24, G11:12, 17, 26‑27terrorism/terrorist, see crime(s) theft, H:158, G5:14thought, conscience and religion, right to freedom of, H:71, G3:16, G6:2, 11, 20, G6:13, G10:8,

see also religionthreat to life or freedom, H:51, G7:14, G8:10, 15, G9:16, G10:14torture

acts of, G5:12‑13, 27, G8:33armed conflict, G12:13, 27gender, G1:35‑36, G7:47forced prostitution or sexual exploitation, G1:18right not to be returned to, G4:20, G5:9sexual orientation, G9:2, 7, 20‑23threats of, G13:21see also Convention Against Torture see also inhuman or degrading treatment

tracing, G7:49, G8:68 trafficking, G7, G10:53, G12:26, G13:21

agents of persecution, G7:21‑24children, G7:3, 19‑20, 47, 49, G8:4, 18, 24‑30consent of victim, G7:11convention grounds, G7:6, 29‑31, 33‑40definition of, G7:7‑13drugs, G10:53evidence, provision of, G7:50force, use of, G7:8‑9

274

forms of, G7:3, 15gender‑related violence, G1:19legal instruments, G7:1‑2medical/psycho‑social assistance, G7:46‑47, 49privacy and identity of victim, G7:22procedural issues, G7:45‑49prostitution, see prostitutionProtocol, see Protocol to Prevent, Suppress and Punish Trafficking in Personsremoval of organs, G7:3, 8–9, 15resettlement, G7:28 re‑trafficking, G7:17‑18, 28rings, G7:4, 27, G8:27servitude, G7:3, 8‑9 sexual exploitation, see sexual exploitation slavery, G7:2, 3, 9smuggling, see smuggling stateless, see statelessness State protection, G7:22‑24UNHCR’s involvement, G7:5victims of, G7:5, 12‑13, 15‑17, 25‑26, 49, 50, G8:24, 28violence, G1:18, G7:18‑19, 48well‑founded fear of persecution, see well‑founded fearwithin national borders, G7:10, 13women, G7:3,19, 32, 34, 38, 47‑48

transgender/transsexual/transvestite, G1:16, 30, see G9trauma, G1:35‑36, G4:26, G7:16, 18, 48, G8:64, 72, G9:59, G10:70, G12:27travel documents, H:20, 33, 125, 134, 191travel facilities, H:20Treaty on International Penal Law, H:21tribes, G2:1, G4:30

unaccompanied/separated childrenadolescent, H:215asylum‑seekers, G8:6burden of proof, G8:73, G10:71guardian, G8:39, 69refugee status, H:214relocation, G8:56victims of trafficking, G7:20

under‑age, see childrenundue hardship, G4:8, 22, 24, G8:56, G9:56, G12:41United Nations

exclusion clauses, H:140, G5:3‑4, G10:22, G11:19purposes and principles, H:162‑163, G5:17protection or assistance, H:142‑143, G5:3

United Nations Children’s Fund (UNICEF), G7:20, 49United Nations Committee on Economic, Social and Cultural Rights, G8:14United Nations Committee on the Rights of the Child, G7:20, 49, G8:4‑5, 20, 34, 60United Nations High Commissioner for Refugees (UNHCR)

competence, G3:3, G13: 6establishment, H:14Executive Committee, see Executive Committeemandate for statelessness, G7:43‑44mandate refugees, see mandateobligations, G5:1Statute of, H:13‑19 supervisory responsibility, H:12, 19, G3:25

275

United Nations Korean Reconstruction Agency (UNKRA), H:142United Nations Relief and Works Agency for Palestine Refugees In The Near East (UNRWA), H:142‑

143, See G13Universal Declaration of Human Rights (1950)

asylum, in the spirit of, H:25rights and freedoms, H:71, 181, G6:2 G7:43, G8:41, G9:5, G10:8

Vienna Convention on Diplomatic Relations (1961), H:88victims

child, G7:27‑28, 49, G8:27‑28, 33, 37, 59, see childrenof assault, G9:60of human rights violations, G12:76of persecution, H:39, 54, 63of sexual violence, G1:36, G12:27of trafficking, see trafficking

victimization, H:34violence

armed conflict and, see G12, G13:21children, against, see children domestic, see domestic violenceegregious acts of, G5:15, see also crime(s)gang violence/violence, from organized criminal groups, G12:84gender‑related, see violencegeneralised, G10:42, G11:5, G12:5, 58, 7‑73, 75global awareness of, G8:3non‑State actors, G2:20perpetrators of, H:175‑179, G1:36, G8:32political, H:175sexual, see sexual violencethreat of, G13:21trafficking, see trafficking unlawful, G5:19witness of, G3:20

voluntarysee cessationdeparture from UNRWA protection, G13:26gender reassignment surgery, G9:21migration, H:62 military service, see G10re‑availment of national protection, H:119

vulnerable groups children, G8:7, 14 trafficking, G7:20, 31‑32, 35‑36, 40

warcivil, G10:42crimes, H:147, 150, 162, 178, G5:3,12, 24, G7:3, G10:12, 22, 30, 46, G12:14, 59criminals, H:148conscientious objection, see G10prisoners, H:95refugees, H:164‑166state protection, H:98

warfare, G10:21, G12:32methods of, G10:21, 27, G12:91objection to means and methods of, G10:26‑30

well‑founded fear armed conflict and violence, G12:11, 17‑19, 21‑25, 29, 31

276

assessment, H:41, 43, 45‑49, 52, 55, 58, 66, 96, 209, G4:7, 15, G6:14, 26, G6:29, G7:17, G8:11, 37, 40

burden of proof, H:67 cessation, H:113, 114, 115, 126, 131, 135, G3:8, 11, 25, G11:28children, H:213, 215, 217, 218, 219, G8:4, 11, 17, 23‑24, 28, 37, 43, 72 elements, H:37‑38, 39, 42, 206, 211, G6:20, G7:11, G8:11, see also elementexaggerated, H:41, 209, G8:11exclusion, H:156, 158, 161, 180, G5:25, G8:64gender‑related persecution, G1:4, 9, 10, 20, 23, 25, 32, 35, 36, G2:19, G6:24,

see also gender‑related persecutionhabitual residence, H:103, G7:26, 27 internal protection/flight/relocation alternative, H:91, G4:3, 6, 7, 8, 13, 20, 22‑23 membership of a particular social group, H:70, 77, 79, G2:1, 2, 14, 16, 19, 20,G7:37‑39, G8:51military service, G10:20

child recruitment, G10:38desertion/draft‑evasion, H:167, 168, 169, G10:46race/nationality, G10:55religion, G10 66

nationality, H:74, 76, 89, 90, 98, 100, 107, 126, 131, G7:26‑27political opinion, H:80, 82‑84, 86, G1:32, G8:45 post‑departure, G6:35‑36refugee definition, H:6, 34, G6:3, G8:4, G10:47‑48, 57, G12:10‑30sexual orientation, G9:16‑19, 28, 38‑39, 42stateless, H:104sur place, H:94, 96, G7:25 trafficking, G7:5, 11, 17, 18, 23, 25‑28, 37, 48, G8:24, 28war refugees, H:165‑166

women, G1 as a particular social group, see membership of a particular social groupasylum‑seekers, see asylum‑seekergender, see gender; gender‑related persecution roles/codes ascribed to, G1:25‑26, G8:47sexual orientation, G9:10, 14‑15, 23, 41, 56, 60social subset, as, G2:12, G7:38trafficked, see traffickingviolence against, G10:59witches, G6:24

worship, H:71‑72, G6:11‑12, G10:65

Yogyakarta Principles, G9: 7